Intentional Exposure to HIV/AIDS Law – New Orleans Attorney
In 1987, the Louisiana Legislature passed a bill creating the criminal offense of Intentional Exposure to the Aids Virus also referred to La.R.S. 14:43.5. Under this law, it is a felony to expose someone to HIV without his or her consent.
- No person shall intentionally expose another to the human immunodeficiency virus (HIV) through sexual contact without the knowing and lawful consent of the victim, if at the time of the exposure the infected person knew he was HIV positive.
- No person shall intentionally expose another to HIV through any means or contact without the knowing and lawful consent of the victim, if at the time of the exposure the infected person knew he was HIV positive.
- No person shall intentionally expose a first responder to HIV through any means or contact without the knowing and lawful consent of the first responder when the offender knows at the time of the offense that he is HIV positive, and has reasonable grounds to believe the victim is a first responder acting in the performance of his duty.
“First responder” includes a commissioned police officer, sheriff, deputy sheriff, marshal, deputy marshal, correctional officer, constable, wildlife enforcement agent, and probation and parole officer, any licensed emergency medical services practitioner and any firefighter regularly employed by a fire department of any municipality, parish, or fire protection district of the state or any volunteer firefighter of the state.
“Sexual contact” is not specfically defined in the statute or elsewhere in Louisiana’s Criminal Code. However, the statute’s inclusion of exposure via “any means or contact” suggests that oral sex or other sexual activities posing no or very low risk of HIV transmission are encompassed within the scope of the law.
Louisiana courts have held that exposure includes via the means saliva, stabbing, needles, biting, throwing blood or other bodily fluids.
This offense is considered a Sex Crime and a Crime of Violence. The penalty is 0 to 10 years in prison, with or without hard labor., or a fine of $5,000.00, both. If the victim was a member of law enforcement at the time of the crime, the penalty is increased to 0 to 11 years in prison or a $6,000.00 fine, or both. Since this offense is considered a sex crime, the defendant must serve the sentence flat with no good time credit and also register as a Tier 1 sex offender for 15 years after being released from prison.
Transmission is not required, Exposure is enough
It is important to note that the Louisiana law only refers to exposure, not transmission of HIV, therefore this offense is not limited to cases where transmission actually occurred. Any person who knows she has HIV/AIDS and who has unprotected sex with another could be charged under this law even if her partner does not contract the disease. The prosecution does not have to prove that the person’s primary motive was to expose, only that she knew that she had HIV and knew what she did was a way in which the virus could be spread.
One of the strongest defenses to raise when defending a charge of criminal exposure to HIV/AIDS is a lack of intent. If the defendant was unaware that she was infected with HIV at the time of the exposure, there can be requisite intent to be guilty of exposing another to AIDS.
It is an affirmative defense, if proven by a preponderance of the evidence, that the person exposed to HIV knew the infected person was infected with HIV, knew the action could result in infection with HIV, and gave consent to the action with that knowledge.
It is also an affirmative defense that the transfer of bodily fluid, tissue, or organs occurred after advice from a licensed physician that the accused was noninfectious, and the accused disclosed his HIV-positive status to the victim.
It is also an affirmative defense that the HIV-positive person disclosed his HIV-positive status to the victim, and took practical means to prevent transmission as advised by a physician or other healthcare provider or is a healthcare provider who was following professionally accepted infection control procedures.
Note: While disclosure of HIV status is a necessary element of all three affirmative defenses, it is often exceedingly difficult to prove, since most evidence is based on conflicting testimony, with one person’s word against another’s.
The Louisiana Department of Health assists these prosecutions
Although the results of HIV tests are generally kept confidential, medical information may be released upon court order or other discovery device. The person whose medical records are requested is entitled to adequate notice to allow them to prepare a written or personal response, unless there is a clear and imminent danger to an individual.