[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3053 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 3053

   To eliminate discrimination in the law for those who have tested 
               positive for HIV, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 23, 2011

Ms. Lee of California (for herself, Mrs. Christensen, Mr. Hinchey, Mr. 
 Cohen, Mr. Serrano, Mr. Clarke of Michigan, Ms. Woolsey, Mr. Rangel, 
Ms. Norton, Mr. Jackson of Illinois, Mr. Sablan, Mr. Grijalva, and Mr. 
   Quigley) introduced the following bill; which was referred to the 
Committee on the Judiciary, and in addition to the Committees on Energy 
   and Commerce and Armed Services, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
   To eliminate discrimination in the law for those who have tested 
               positive for HIV, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Repeal Existing Policies that 
Encourage and Allow Legal HIV Discrimination Act'', the ``REPEAL HIV 
Discrimination Act'', or the ``REPEAL Act''.

SEC. 2. DEFINITIONS.

    (a) HIV and HIV/AIDS.--The terms ``HIV'' and ``HIV/AIDS'' have the 
meanings given to such terms in section 2689 of the Public Health 
Service Act (42 U.S.C. 300ff-88).
    (b) State.--The term ``State'' includes the District of Columbia, 
American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, 
Puerto Rico, and the United States Virgin Islands.

SEC. 3. FINDINGS.

    The Congress makes the following findings:
            (1) At present, 34 States and 2 U.S. territories have 
        criminal statutes based on ``exposure'' to HIV. Most of these 
        laws were adopted before the availability of effective 
        antiretroviral treatment for HIV/AIDS.
            (2) According to the Centers for Disease Control and 
        Prevention (CDC), HIV cannot reproduce outside the human body. 
        HIV is not spread by air or water, insects, saliva, tears, 
        sweat, casual contact (like shaking hands or sharing dishes), 
        or kissing.
            (3) HIV is primarily transmitted between persons neither of 
        whom is aware that one is infected with HIV. Epidemiologically 
        important routes of transmission are unprotected vaginal or 
        anal sexual contact. HIV can also be transmitted via some types 
        of oral sex and also via blood transfusions, although 
        transmission via these routes is not common in the United 
        States.
            (4) Prosecutions for ``exposure'', nondisclosure, and/or 
        transmission of HIV have occurred in at least 39 States under 
        general assault or homicide laws and/or HIV-specific laws.
            (5) The Ryan White Comprehensive AIDS Emergency Act of 1990 
        (CARE Act) mandated that States prove the adequacy of their 
        laws for criminal prosecution of ``intentional transmission'' 
        of HIV before they could receive Federal funding for HIV/AIDS 
        prevention.
            (6) By 1993, approximately half the States had HIV-specific 
        criminal legislation. Most of these felony laws do not require 
        that HIV transmission actually occur for a person to be charged 
        and convicted. Being unaware of one's HIV status is the primary 
        defense to prosecution under State criminal laws, because 
        almost all statutes that criminalize exposure to HIV do so only 
        if the accused individual, prior to the time of exposure, has 
        been tested and informed that he or she is infected with HIV.
            (7) Over the past 3 decades, scientists have learned much 
        about HIV, its transmission, and the treatment of those who 
        become infected with it. State and Federal law does not 
        currently reflect the medical advances and discoveries made 
        with regards to HIV/AIDS.
            (8) Many people living with HIV have been given sentences 
        of 10 to 30 years even in the absence of HIV transmission, 
        despite CDC acknowledgment and other scientific resources 
        concluding that intentional HIV transmission is rare.
            (9) In most States, any sexual exposure--regardless of 
        whether protection is used, if there is no deliberate intent to 
        transmit HIV, or without assessment of risk--is subject to the 
        same punishment as actual transmission.
            (10) According to the CDC, correct and consistent male or 
        female condom use greatly reduces the risk of HIV transmission. 
        Nonetheless, most State HIV-specific laws and prosecutions do 
        not treat the use of a condom during sexual intercourse as a 
        mitigating factor or evidence that the defendant did not intend 
        to transmit HIV.
            (11) In addition, criminal laws and prosecutions do not 
        take into account the positive effects of consistently taking 
        antiretroviral medication, which can lower viral load to 
        undetectable levels and further reduce the risks of 
        transmitting the virus.
            (12) Although HIV/AIDS currently is viewed as a chronic, 
        treatable medical condition, people living with HIV have been 
        charged under aggravated assault, attempted murder, and even 
        bioterrorism statutes because prosecutors, courts, and 
        legislators continue to view and characterize the blood, semen, 
        and saliva of people living with HIV as a ``deadly weapon''.
            (13) Studies amply demonstrate that HIV-specific laws do 
        not influence the behavior of people living with or at risk of 
        HIV in those States where these laws exist. Furthermore, 
        placing legal responsibility for preventing the transmission of 
        HIV and other pathogens exclusively on people diagnosed with 
        HIV undermines the public health message that all people should 
        practice behaviors that protect themselves and their partners 
        from HIV and other sexually transmitted diseases.
            (14) Approximately 13 States mandate that all those who are 
        aware that they have HIV must disclose their HIV status to 
        partners, despite CDC prevention guidelines that encourage 
        States to devise partner notification services that are 
        voluntary, confidential, and conducted in a collegial and 
        cooperative manner and are sensitive to potential consequences 
        of notification. Such consequences can include damage to 
        relationships, loss of housing and potential violence.
            (15) Often, the identity of an individual accused of 
        violating any of these HIV-specific restrictions is broadcast 
        through media reports, potentially destroying employment 
        opportunities and relationships and violating the person's 
        right to privacy.
            (16) In some States, individuals who are convicted under an 
        HIV-specific statute are forced to register as sex offenders, 
        destroying their employability and fracturing family 
        relationships, even in cases where no actual HIV transmission 
        occurred.
            (17) The United Nations, including the Joint United Nations 
        Programme on HIV/AIDS (UNAIDS), urges governments to ``limit 
        criminalization to cases of intentional transmission. Such 
        requirement indicates a situation where a person knows his or 
        her HIV-positive status, acts with the intention to transmit 
        HIV, and does in fact transmit it''. UNAIDS also recommends 
        that criminal law should not be applied to cases where there is 
        no significant risk of transmission.
            (18) The Global Commission on HIV and the Law was launched 
        in June 2010 to examine laws and practices that criminalize 
        people living with and vulnerable to HIV and to develop 
        evidence-based recommendations for effective HIV responses that 
        promote and protect human rights.
            (19) The National Alliance of State and Territorial AIDS 
        Directors released a statement in February 2011 saying that 
        ``HIV criminalization undercuts our most basic HIV prevention 
        and sexual health messages, and breeds ignorance, fear and 
        discrimination against people living with HIV''. NASTAD further 
        ``supports efforts to examine and support level-headed, proven 
        public health approaches that end punitive laws that single out 
        HIV over other STDs and that impose penalties for alleged 
        nondisclosure, exposure and transmission that are severely 
        disproportionate to the actual resulting harm''.
            (20) In 2010, the President released a National HIV/AIDS 
        Strategy (NHAS), which addressed HIV-specific criminal laws, 
        stating: ``[W]hile we understand the intent behind [these] 
        laws, they may not have the desired effect and they may make 
        people less willing to disclose their status by making people 
        feel at even greater risk of discrimination. In some cases, it 
        may be appropriate for legislators to reconsider whether 
        existing laws continue to further the public interest and 
        public health. In many instances, the continued existence and 
        enforcement of these types of laws run counter to scientific 
        evidence about routes of HIV transmission and may undermine the 
        public health goals of promoting HIV screening and 
        treatment.''.
            (21) The NHAS also states that State legislatures should 
        consider reviewing HIV-specific criminal statutes to ensure 
        that they are consistent with current knowledge of HIV 
        transmission and support public health approaches to preventing 
        and treating HIV.

SEC. 4. SENSE OF CONGRESS REGARDING LAWS OR REGULATIONS DIRECTED AT 
              PEOPLE LIVING WITH HIV/AIDS.

    It is the sense of Congress that Federal and State laws, policies, 
and regulations regarding people living with HIV/AIDS--
            (1) should not place unique or additional burdens on such 
        individuals solely as a result of their HIV status; and
            (2) should instead demonstrate a public health-oriented, 
        evidence-based, medically accurate, and contemporary 
        understanding of--
                    (A) the multiple factors that lead to HIV 
                transmission;
                    (B) the relative risk of HIV transmission routes;
                    (C) the current health implications of living with 
                HIV;
                    (D) the associated benefits of treatment and 
                support services for people living with HIV; and
                    (E) the impact of punitive HIV-specific laws and 
                policies on public health, on people living with or 
                affected by HIV, and on their families and communities.

SEC. 5. REVIEW OF FEDERAL AND STATE LAWS.

    (a) Review of Federal and State Laws.--
            (1) In general.--No later than 90 days after the date of 
        the enactment of this Act, the Attorney General, the Secretary 
        of Health and Human Services, and the Secretary of Defense 
        acting jointly (in this subsection and subsection (b) referred 
        to as the ``designated officials'') shall initiate a national 
        review of Federal and State laws, policies, regulations, and 
        judicial precedents and decisions regarding criminal and 
        related civil commitment cases involving people living with 
        HIV/AIDS, including in regards to the Uniform Code of Military 
        Justice.
            (2) Consultation.--In carrying out the review under 
        paragraph (1), the designated officials shall ensure diverse 
        participation and consultation from each State, including 
        with--
                    (A) State attorneys general (or their 
                representatives);
                    (B) State public health officials (or their 
                representatives);
                    (C) State judicial and court system officers, 
                including judges, district attorneys, prosecutors, 
                defense attorneys, law enforcement, and correctional 
                officers;
                    (D) members of the United States Armed Forces, 
                including members of other Federal services subject to 
                the Uniform Code of Military Justice;
                    (E) people living with HIV/AIDS, particularly those 
                who have been subject to HIV-related prosecution or who 
                are from communities whose members have been 
                disproportionately subject to HIV-specific arrests and 
                prosecutions;
                    (F) legal advocacy and HIV/AIDS service 
                organizations that work with people living with HIV/
                AIDS;
                    (G) nongovernmental health organizations that work 
                on behalf of people living with HIV/AIDS; and
                    (H) trade organizations or associations 
                representing persons or entities described in 
                subparagraphs (A) through (G).
            (3) Relation to other reviews.--In carrying out the review 
        under paragraph (1), the designated officials may utilize other 
        existing reviews of criminal and related civil commitment cases 
        involving people living with HIV/AIDS, including any such 
        review conducted by any Federal or State agency or any public 
        health, legal advocacy, or trade organization or association if 
        the designated officials determine that such reviews were 
        conducted in accordance with the principles set forth in 
        section 4.
    (b) Report.--No later than 180 days after initiating the review 
required by subsection (a), the Attorney General shall transmit to the 
Congress and make publicly available a report containing the results of 
the review, which includes the following:
            (1) For each State and for the Uniform Code of Military 
        Justice, a summary of the relevant laws, policies, regulations, 
        and judicial precedents and decisions regarding criminal cases 
        involving people living with HIV/AIDS, including, if 
        applicable, the following:
                    (A) A determination of whether such laws, policies, 
                regulations, and judicial precedents and decisions 
                place any unique or additional burdens upon people 
                living with HIV/AIDS.
                    (B) A determination of whether such laws, policies, 
                regulations, and judicial precedents and decisions 
                demonstrate a public health-oriented, evidence-based, 
                medically accurate, and contemporary understanding of--
                            (i) the multiple factors that lead to HIV 
                        transmission;
                            (ii) the relative risk of HIV transmission 
                        routes;
                            (iii) the current health implications of 
                        living with HIV;
                            (iv) the associated benefits of treatment 
                        and support services for people living with 
                        HIV; and
                            (v) the impact of punitive HIV-specific 
                        laws and policies on public health, on people 
                        living with or affected by HIV, and on their 
                        families and communities.
                    (C) An analysis of the public health and legal 
                implications of such laws, policies, regulations, and 
                judicial precedents, including an analysis of the 
                consequences of having a similar penal scheme applied 
                to comparable situations involving other communicable 
                diseases.
                    (D) An analysis of the proportionality of 
                punishments imposed under HIV-specific laws, policies, 
                regulations, and judicial precedents, taking into 
                consideration penalties attached to violation of State 
                laws against similar degrees of endangerment or harm, 
                such as driving while intoxicated (DWI) or transmission 
                of other communicable diseases, or more serious harms, 
                such as vehicular manslaughter offenses.
            (2) An analysis of common elements shared between State 
        laws, policies, regulations, and judicial precedents.
            (3) A set of best practice recommendations directed to 
        State governments, including State attorneys general, public 
        health officials, and judicial officers, in order to ensure 
        that laws, policies, regulations, and judicial precedents 
        regarding people living with HIV/AIDS are in accordance with 
        the principles set forth in section 4.
            (4) Recommendations for adjustments to the Uniform Code of 
        Military Justice, as may be necessary, in order to ensure that 
        laws, policies, regulations, and judicial precedents regarding 
        people living with HIV/AIDS are in accordance with the 
        principles set forth in section 4.
    (c) Guidance.--Within 90 days of the release of the report required 
by subsection (b), the Attorney General and the Secretary of Health and 
Human Services, acting jointly, shall develop and publicly release 
updated guidance for States based on the set of best practice 
recommendations required by subsection (b)(3) in order to assist States 
dealing with criminal and related civil commitment cases regarding 
people living with HIV/AIDS.
    (d) Monitoring and Evaluation System.--Within 60 days of the 
release of the guidance required by subsection (c), the Attorney 
General and the Secretary of Health and Human Services, acting jointly, 
shall establish an integrated monitoring and evaluation system which 
includes, where appropriate, objective and quantifiable performance 
goals and indicators to measure progress towards statewide 
implementation in each State of the best practice recommendations 
required in subsection (b)(3), including to monitor, track, and 
evaluate the effectiveness of assistance provided pursuant to section 
6.
    (e) Adjustments to Federal Laws, Policies, or Regulations.--Within 
90 days of the release of the report required by subsection (b), the 
Attorney General, the Secretary of Health and Human Services, and the 
Secretary of Defense, acting jointly, shall develop and transmit to the 
President and the Congress, and make publicly available, such proposals 
as may be necessary to implement adjustments to Federal laws, policies, 
or regulations, including to the Uniform Code of Military Justice, 
based on the recommendations required by subsection (b)(4), either 
through executive order or through changes to statutory law.
    (f) Authorization of Appropriations.--
            (1) In general.--There are authorized to be appropriated 
        such sums as may be necessary for the purpose of carrying out 
        this section. Amounts authorized to be appropriated by the 
        preceding sentence are in addition to amounts otherwise 
        authorized to be appropriated for such purpose.
            (2) Availability of funds.--Amounts appropriated pursuant 
        to the authorization of appropriations in paragraph (1) are 
        authorized to remain available until expended.

SEC. 6. AUTHORIZATION TO PROVIDE GRANTS.

    (a) Grants by Attorney General.--
            (1) In general.--The Attorney General may provide 
        assistance to eligible State and local entities and eligible 
        nongovernmental organizations for the purpose of incorporating 
        the best practice recommendations developed under section 
        5(b)(3) within relevant State laws, policies, regulations, and 
        judicial decisions regarding people living with HIV/AIDS.
            (2) Authorized activities.--The assistance authorized by 
        paragraph (1) may include--
                    (A) direct technical assistance to eligible State 
                and local entities in order to develop, disseminate, or 
                implement State laws, policies, regulations, or 
                judicial decisions that conform with the best practice 
                recommendations developed under section 5(b)(3);
                    (B) direct technical assistance to eligible 
                nongovernmental organizations in order to provide 
                education and training, including through classes, 
                conferences, meetings, and other educational 
                activities, to eligible State and local entities; and
                    (C) subcontracting authority to allow eligible 
                State and local entities and eligible nongovernmental 
                organizations to seek technical assistance from legal 
                and public health experts with a demonstrated 
                understanding of the principles underlying the best 
                practice recommendations developed under section 
                5(b)(3).
    (b) Grants by Secretary of HHS.--
            (1) In general.--The Secretary of Health and Human 
        Services, acting through the Director of the Centers for 
        Disease Control and Prevention, may provide assistance to State 
        and local public health departments and eligible 
        nongovernmental organizations for the purpose of supporting 
        eligible State and local entities to incorporate the best 
        practice recommendations developed under section 5(b)(3) within 
        relevant State laws, policies, regulations, and judicial 
        decisions regarding people living with HIV/AIDS.
            (2) Authorized activities.--The assistance authorized by 
        paragraph (1) may include--
                    (A) direct technical assistance to State and local 
                public health departments in order to support the 
                development, dissemination, or implementation of State 
                laws, policies, regulations, or judicial decisions that 
                conform with the set of best practice recommendations 
                developed under section 5(b)(3);
                    (B) direct technical assistance to eligible 
                nongovernmental organizations in order to provide 
                education and training, including through classes, 
                conferences, meetings, and other educational 
                activities, to State and local public health 
                departments; and
                    (C) subcontracting authority to allow State and 
                local public health departments and eligible 
                nongovernmental organizations to seek technical 
                assistance from legal and public health experts with a 
                demonstrated understanding of the principles underlying 
                the best practice recommendations developed under 
                section 5(b)(3).
    (c) Limitation.--As a condition of receiving assistance through 
this section, eligible State and local entities, State and local public 
health departments, and eligible nongovernmental organizations shall 
agree--
            (1) not to place any unique or additional burdens on people 
        living with HIV/AIDS solely as a result of their HIV status; 
        and
            (2) that if the entity, department, or organization 
        promulgates any laws, policies, regulations, or judicial 
        decisions regarding people living with HIV/AIDS, such actions 
        shall demonstrate a public health-oriented, evidence-based, 
        medically accurate, and contemporary understanding of--
                    (A) the multiple factors that lead to HIV 
                transmission;
                    (B) the relative risk of HIV transmission routes;
                    (C) the current health implications of living with 
                HIV;
                    (D) the associated benefits of treatment and 
                support services for people living with HIV; and
                    (E) the impact of punitive HIV-specific laws and 
                policies on public health, on people living with or 
                affected by HIV, and on their families and communities.
    (d) Report.--No later than 1 year after the date of the enactment 
of this Act, and annually thereafter, the Attorney General and the 
Secretary of Health and Human Services, acting jointly, shall transmit 
to Congress and make publicly available a report describing, for each 
State, the impact and effectiveness of the assistance provided through 
this Act. Each such report shall include--
            (1) a detailed description of the progress each State has 
        made, if any, in implementing the best practice recommendations 
        developed under section 5(b)(3) as a result of the assistance 
        provided under this section, and based on the performance goals 
        and indicators established as part of the monitoring and 
        evaluation system in section (5)(d);
            (2) a brief summary of any outreach efforts undertaken 
        during the prior year by the Attorney General and the Secretary 
        of Health and Human Services to encourage States to seek 
        assistance under this section in order to implement the best 
        practice recommendations developed under section 5(b)(3);
            (3) a summary of how assistance provided through this 
        section is being utilized by eligible State and local entities, 
        State and local public health departments, and eligible 
        nongovernmental organizations and, if applicable, any 
        contractors, including with respect to nongovernmental 
        organizations, the type of technical assistance provided, and 
        an evaluation of the impact of such assistance on eligible 
        State and local entities; and
            (4) a summary and description of eligible State and local 
        entities, State and local public health departments, and 
        eligible nongovernmental organizations receiving assistance 
        through this section, including if applicable, a summary and 
        description of any contractors selected to assist in 
        implementing such assistance.
    (e) Definitions.--For the purposes of this section:
            (1) Eligible state and local entities.--The term ``eligible 
        State and local entities'' means the relevant individuals, 
        offices, or organizations that directly participate in the 
        development, dissemination, or implementation of State laws, 
        policies, regulations, or judicial decisions, including--
                    (A) State governments, including State attorneys 
                general, State departments of justice, and State 
                National Guards, or their equivalents;
                    (B) State judicial and court systems, including 
                trial courts, appellate courts, State supreme courts 
                and courts of appeal, and State correctional 
                facilities, or their equivalents; and
                    (C) local governments, including city and county 
                governments, district attorneys, and local law 
                enforcement departments, or their equivalents.
            (2) State and local public health departments.--The term 
        ``State and local public health departments'' means the 
        following:
                    (A) State public health departments, or their 
                equivalents, including the chief officer of such 
                departments and infectious disease and communicable 
                disease specialists within such departments.
                    (B) Local public health departments, or their 
                equivalents, including city and county public health 
                departments, the chief officer of such departments, and 
                infectious disease and communicable disease specialists 
                within such departments.
                    (C) Public health departments or officials, or 
                their equivalents, within State or local correctional 
                facilities.
                    (D) Public health departments or officials, or 
                their equivalents, within State National Guards.
                    (E) Any other recognized State or local public 
                health organization or entity charged with carrying out 
                official State or local public health duties.
            (3) Eligible nongovernmental organizations.--The term 
        ``eligible nongovernmental organizations'' means the following:
                    (A) Nongovernmental organizations, including trade 
                organizations or associations that represent--
                            (i) State attorneys general, or their 
                        equivalents;
                            (ii) State public health officials, or 
                        their equivalents;
                            (iii) State judicial and court officers, 
                        including judges, district attorneys, 
                        prosecutors, defense attorneys, law 
                        enforcement, and correctional officers;
                            (iv) State National Guards;
                            (v) people living with HIV/AIDS;
                            (vi) legal advocacy and HIV/AIDS service 
                        organizations that work with people living with 
                        HIV/AIDS; and
                            (vii) nongovernmental health organizations 
                        that work on behalf of people living with HIV/
                        AIDS.
                    (B) Nongovernmental organizations, including trade 
                organizations or associations that demonstrate a public 
                health oriented, evidence-based, medically accurate, 
                and contemporary understanding of--
                            (i) the multiple factors that lead to HIV 
                        transmission;
                            (ii) the relative risk of HIV transmission 
                        routes;
                            (iii) the current health implications of 
                        living with HIV;
                            (iv) the associated benefits of treatment 
                        and support services for people living with 
                        HIV; and
                            (v) the impact of punitive HIV-specific 
                        laws and policies on public health, on people 
                        living with or affected by HIV, and on their 
                        families and communities.
    (f) Authorization of Appropriations.--
            (1) In general.--In addition to amounts otherwise made 
        available, there are authorized to be appropriated to the 
        Attorney General and the Secretary of Health and Human Services 
        such sums as may be necessary to carry out this section for 
        each of the fiscal years 2012 through 2016.
            (2) Availability of funds.--Amounts appropriated pursuant 
        to the authorizations of appropriations in paragraphs (1) and 
        (2) are authorized to remain available until expended.
                                 <all>