1.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
.
2.
(a)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)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.
3.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.
4.Sense of Congress
regarding laws or regulations directed at people living with
HIV/AIDSIt 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.
5.Review of Federal
and State laws
(a)Review of
federal and state laws
(1)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)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 reviewsIn 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)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)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 systemWithin 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 regulationsWithin 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)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)Amounts appropriated pursuant to the authorization of
appropriations in paragraph (1) are authorized to remain available until
expended.
6.Authorization to
provide grants
(a)Grants by
Attorney General
(1)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)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)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)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)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)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)For
the purposes of this section:
(1)Eligible state
and local entitiesThe 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 departmentsThe 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 organizationsThe 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 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)Amounts appropriated pursuant to the authorizations of
appropriations in paragraphs (1) and (2) are authorized to remain available
until expended.