[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1843 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 1843
To modernize laws, and eliminate discrimination, with respect to people
living with HIV/AIDS, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 7, 2013
Ms. Lee of California (for herself and Ms. Ros-Lehtinen) 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 modernize laws, and eliminate discrimination, with respect to people
living with HIV/AIDS, 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 of 2013'' or the
``REPEAL HIV Discrimination Act of 2013''.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) At present, 32 States and 2 United States territories
have criminal statutes based on perceived exposure to HIV,
rather than actual transmission of HIV to another. Thirteen
States have HIV-specific laws that make spitting or biting a
felony, even though it is not possible to transmit HIV via
saliva.
(2) According to the Centers for Disease Control and
Prevention (CDC), HIV is only transmitted through blood, semen,
vaginal fluid, and breast milk.
(3) Prosecutions for perceived exposure, nondisclosure, or
unintentional transmission of HIV have occurred in at least 39
States under general or HIV-specific laws.
(4) Even in the absence of HIV transmission, people living
with HIV have been given sentences of up to 35 years based on
exaggerated fears of HIV, regardless of actual risk of
transmission.
(5) State and Federal criminal law does not currently
reflect the three decades of medical advances and discoveries
made with regard to transmission and treatment of HIV.
(6) According to CDC, correct and consistent male or female
condom use is very effective in preventing HIV transmission.
However, 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.
(7) Criminal laws and prosecutions do not take into account
the benefits of effective antiretroviral medications, which
reduce the HIV virus to undetectable levels and further reduce
the already low risk of transmitting the HIV to near-zero.
(8) Although HIV/AIDS currently is viewed as a treatable,
chronic, 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''.
(9) Multiple peer-reviewed studies demonstrate that HIV-
specific laws do not reduce risk-taking behavior or increase
disclosure by people living with or at risk of HIV, and there
is increasing evidence that these laws reduce the willingness
to get tested. Furthermore, placing legal responsibility for
preventing the transmission of HIV and other pathogens
exclusively on people diagnosed with HIV, and without
consideration of other pathogens that can be sexually
transmitted, undermines the public health message that all
people should practice behaviors that protect themselves and
their partners from HIV and other sexually transmitted
diseases.
(10) The identity of an individual accused of violating
existing HIV-specific restrictions is broadcast through media
reports, potentially destroying employment opportunities and
relationships and violating the person's right to privacy.
(11) Individuals who are convicted for HIV exposure,
nondisclosure, or transmission often must register as sex
offenders even in cases of consensual sexual activity. Their
employability is destroyed and their family relationships are
fractured.
(12) 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.
(13) 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. The
Commission calls for ``governments, civil society and
international bodies to repeal punitive laws and enact laws
that facilitate and enable effective responses to HIV
prevention, care and treatment services for all who need
them''. The Commission recommends against the enactment of
``laws that explicitly criminalise HIV transmission, exposure
or non-disclosure of HIV status, which are counterproductive''.
(14) 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.''. 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.
(15) In February 2013, the President's Advisory Council on
AIDS (PACHA) passed a resolution stating ``all U.S. law should
be consistent with current medical and scientific knowledge and
accepted human rights-based approaches to disease control and
prevention and avoid imposition of unwarranted punishment based
on health and disability status''.
SEC. 3. 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 demonstrated 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,
policies, regulations, and judicial precedents and
decisions on public health, on people living with or
affected by HIV, and on their families and communities.
SEC. 4. REVIEW OF FEDERAL AND STATE LAWS.
(a) Review of Federal and State Laws.--
(1) In general.--Not 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 section 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 regard to
the Uniform Code of Military Justice.
(2) Consultation.--In carrying out the review under
paragraph (1), the designated officials shall seek to include
diverse participation from, and consultation with, each of the
following:
(A) Each State.
(B) State attorneys general (or their
representatives).
(C) State public health officials (or their
representatives).
(D) State judicial and court system officers,
including judges, district attorneys, prosecutors,
defense attorneys, law enforcement, and correctional
officers.
(E) Members of the United States Armed Forces,
including members of other Federal services subject to
the Uniform Code of Military Justice.
(F) 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
prosecution.
(G) Legal advocacy and HIV/AIDS service
organizations that work with people living with HIV/
AIDS.
(H) Nongovernmental health organizations that work
on behalf of people living with HIV/AIDS.
(I) 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 determines that such reviews were
conducted in accordance with the principles set forth in
section 3.
(b) Report.--Not 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 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 and decisions, 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 3.
(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 3.
(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 toward statewide
implementation in each State of the best practice recommendations
required in subsection (b)(3).
(e) Modernization of Federal Laws, Policies, and Regulations.--
Within 90 days of the release of the report required by subsection (b),
the designated officials 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.
SEC. 5. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to discourage the
prosecution of individuals who intentionally transmit or attempt to
transmit HIV to another individual.
SEC. 6. NO ADDITIONAL APPROPRIATIONS AUTHORIZED.
This Act shall not be construed to increase the amount of
appropriations that are authorized to be appropriated for any fiscal
year.
SEC. 7. DEFINITIONS.
For purposes of this Act:
(1) 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).
(2) 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.
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