113 HR 1843 IH: Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2013
U.S. House of Representatives
2013-05-07
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EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
1.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
.
2.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
.
3.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 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.
4.Review of Federal
and State laws
(a)Review of
Federal and State laws
(1)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)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 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 determines that such reviews were conducted in accordance with the
principles set forth in section 3.
(b)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)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 toward
statewide implementation in each State of the best practice recommendations
required in subsection (b)(3).
(e)Modernization of
Federal laws, policies, and regulationsWithin 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.
5.Nothing in this
Act shall be construed to discourage the prosecution of individuals who
intentionally transmit or attempt to transmit HIV to another individual.
6.No additional
appropriations authorizedThis
Act shall not be construed to increase the amount of appropriations that are
authorized to be appropriated for any fiscal year.
7.For purposes of this Act:
(1)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)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.