[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2186 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                S. 2186

  To modernize laws and policies, and eliminate discrimination, with 
    respect to people living with HIV/AIDS, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 4, 2017

Mr. Coons (for himself, Ms. Baldwin, Mr. Markey, Mr. Casey, Mr. Murphy, 
 and Mr. Merkley) introduced the following bill; which was read twice 
             and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To modernize laws and policies, 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 2017'' or the 
``REPEAL HIV Discrimination Act of 2017''.

SEC. 2. FINDINGS.

    The Congress makes the following findings:
            (1) At present, 33 States and 2 United States territories 
        have criminal statutes based on perceived exposure to HIV, 
        rather than actual transmission of HIV to another. Eleven 
        States have HIV-specific laws that make spitting or biting a 
        felony, even though it is not possible to transmit HIV via 
        saliva. Twenty-four States require persons who are aware that 
        they have HIV to disclose their status to sexual partners. 
        Fourteen of these 24 States also require disclosure to needle-
        sharing partners. Twenty-five States criminalize one or more 
        behaviors that pose a low or negligible risk for HIV 
        transmission.
            (2) According to the Centers for Disease Control and 
        Prevention (CDC), HIV is only transmitted through blood, semen, 
        vaginal fluid, and breast milk.
            (3) HIV-specific criminal laws are classified as felonies 
        in 28 States; in three States, a person's exposure to another 
        to HIV does not subject the person to criminal prosecution for 
        that act alone, but may result in a sentence enhancement. 
        Eighteen States impose sentences of up to 10 years; seven 
        impose sentences between 11 and 20 years; and five impose 
        sentences of greater than 20 years.
            (4) When members of the Armed Forces acquire HIV, they are 
        issued orders that require them to disclose under all 
        circumstances including when the known risk of transmission is 
        zero. Failure to disclose can result in prosecution under the 
        Uniform Code of Military Justice (UCMJ).
            (5) The number of prosecutions, arrests, and instances 
        where HIV-specific criminal laws are used to induce plea 
        agreements is unknown. Because State-level prosecution and 
        arrest data are not readily available in any national legal 
        database, the societal impact of these laws may be 
        underestimated and most cases that go to trial are not reduced 
        to written, published opinions.
            (6) 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/AIDS.
            (7) According to the 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.
            (8) 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.
            (9) Although HIV/AIDS currently is viewed as a treatable, 
        chronic, medical condition, people living with HIV/AIDS 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''.
            (10) 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.
            (11) 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.
            (12) 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.
            (13) 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.
            (14) 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 criminalize HIV transmission, exposure 
        or non-disclosure of HIV status, which are counterproductive''.
            (15) In 2010, the President released a National HIV/AIDS 
        Strategy (NHAS), which addressed HIV-specific criminal laws, 
        stating: ``While 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.
            (16) 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.

    It is the sense of Congress that Federal and State laws, policies, 
and regulations regarding people living with HIV--
            (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 (UCMJ).
            (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 UCMJ.
                    (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, 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 UCMJ, a summary of the 
        relevant laws, policies, regulations, and judicial precedents 
        and decisions regarding criminal cases involving people living 
        with HIV, 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.
                    (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 are in accordance with the 
        principles set forth in section 3.
            (4) Recommendations for adjustments to the UCMJ, 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. 
        Such recommendations should include any necessary and 
        appropriate changes to ``Orders to Follow Preventative Medicine 
        Requirements''.
    (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.
    (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 them 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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