29 Nov A Comparative Look at HIV Laws in the Deep South: Mississippi vs. Tennessee, Alabama, and Louisiana
A Message from Alecia Reed-Owens, Deputy Director of Health Law at Mississippi Center for Justice
The Deep South has long been grappling with the HIV epidemic. While significant strides have been made in HIV prevention and treatment nationwide, the legal landscape regarding HIV varies considerably from state to state. In this blog post, we will compare Mississippi’s HIV laws with those of other Deep South states, namely Tennessee, Alabama, and Louisiana. Understanding how these states approach HIV-related legislation can shed light on the progress made and areas that still need attention in Mississippi.
Mississippi:
Mississippi’s HIV-specific laws are among the strictest in the nation. They not only criminalize the intentional transmission of HIV, as well as reckless exposure to the virus, but people living with HIV in Mississippi can face prosecution under general criminal laws if they engage in sexual activity without disclosing their status, even if there is negligible or no risk of transmission. In fact, highly effective medication has been developed to lower the viral count of HIV-positive individuals, minimizing the risk of transmission and there are medications available to help prevent contracting the virus in the first place. Additionally, to date, there have been no documented cases of HIV transmission through saliva. Moreover, there’s a lack of clarity in the law, making it difficult for individuals to understand their obligations and potential legal consequences. Even while scientific knowledge and medical treatment have undergone a complete transformation in the last 20 years, the law has not significantly changed since its adoption in 2004 and these laws have since created an environment of fear and stigma for individuals living with HIV. To learn more about the outdated HIV laws in Mississippi, we invite you to explore our initial blog post on the topic, which can be found here.
Mississippi Law:
- Miss. Code § 97-27-14(1) (2004): Exposure to HIV, hepatitis B, hepatitis C: Knowingly exposing another person to HIV, hepatitis B, or hepatitis C is a felony punishable by up to ten years in prison and/or a $10,000 fine. This includes consensual sex without disclosure of status and activities such as spitting.
- Miss. Code. § 97-27-14(2) (2004): Endangerment by bodily substance: Attempting to cause or knowingly causing a corrections employee, visitor to a correctional facility, or another inmate or an offender to come into contact with blood, seminal fluid, urine, feces, or saliva is a felony punishable by imprisonment for up to ten years in prison and/or a $10,000 fine if you are a person living with HIV or hepatitis.
Tennessee:
Tennessee also has stringent laws pertaining to HIV transmission. Similar to Mississippi, it criminalizes intentional transmission and reckless exposure to the virus and it defines these terms in such a way that transmission is not required for conviction. Those convicted may face incarceration and substantial fines, making Tennessee another state with harsh consequences for HIV-related offenses.
May of 2023 marked a significant change to Tennessee’s laws. A bill was passed and signed into law which removed the requirement for sex offender registration. This change not only applied to those convicted in the future, but also to the roughly 70 individuals who had previously been registered for criminal ‘exposure’. These individuals now have the option to apply to have their names removed from the registry.
While this reform was a positive step towards reducing the harm caused by Tennessee’s HIV laws, there is still a long way to go. ‘Exposure’ remains a prosecutable offense in the state, as evidenced by a new case in July 2023 where a man was charged with ‘criminal exposure to HIV’.
Tennessee Law:
- Tenn. Code § 39-13-109 (1994): Exposure to HIV, hepatitis B, hepatitis C: Knowingly exposing another person to HIV, hepatitis B, or hepatitis C is a felony. (sexual exposure; donation of blood, tissues, and fluids; needle-sharing)
- Tenn. Code § 39-13-516 (1991): A person commits aggravated prostitution when, knowing that such person is infected with HIV, the person engages in sexual activity as a business or is an inmate in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity. Aggravated prostitution is a Class C felony.
Alabama:
Alabama does not have any HIV-specific laws, however there are general disease laws which can be used to prosecute people living with HIV for perceived ‘exposure’.
Additionally, people living with HIV (PLHIV) and other communicable diseases face enhanced felony penalties for exposing others to bodily fluids, even though urine, feces, and saliva are not known transmitters of HIV. Neither the intent to transmit disease nor disease transmission are required for prosecution.
People living with a “communicable disease” face a Class C felony, punishable by up to ten years imprisonment, and/or a $15,000 fine for “knowingly caus[ing] or attempt[ing] to cause another person to come into contact with a bodily fluid” unless such contact is consented to or is necessary for medical care. The statute defines “bodily fluid” to include blood, saliva, mucous, seminal fluid, urine, or feces. However, “communicable disease” is not defined, meaning a variety of casually transmitted conditions—such as measles, influenza, or tuberculosis—fall within the plain meaning of the statute, in addition to HIV and other STIs
These laws have been widely criticized for perpetuating stigma, discouraging HIV testing, and disproportionately affecting marginalized communities. Advocates have been pushing for reform, but progress has been slow.
Alabama Law:
- ALA. CODE §§ 13A-6-242(c), Assault with bodily fluids is a Class A misdemeanor; provided, however, a violation of this section is a Class C felony if the person commits the crime of assault with bodily fluids knowing that he or she has a communicable disease.
- ALA. CODE §§ 22-11A-21(c): Any person afflicted with a sexually transmitted disease who shall knowingly transmit, or assume the risk of transmitting, or do any act which will probably or likely transmit such disease to another person shall be guilty of a Class C misdemeanor.
Louisiana:
Louisiana has faced its share of challenges in addressing HIV, and there has been limited progress in updating its main law pertaining to HIV criminalization, titled ‘Intentional Exposure to HIV’.
In 2018, amendments were made to the law that changed the title from Intentional Exposure to AIDS to Intentional Exposure to HIV. Other changes that year included the deletion of the words ‘biting and spitting’ when referring to modes of HIV transmission and adding allowances for affirmative defenses. Louisiana’s law does not require that transmission occurs or intention to transmit is proven. Lack of disclosure is sufficient for arrest and prosecution and people often weaponize the threat of claiming nondisclosure to control partners living with HIV, even though their partner did disclose. If convicted, Louisiana’s law mandates that those individuals register as sex offenders. There is still work to be done to align the laws with a more modern and scientifically accurate understanding of HIV transmission and prevention.
Louisiana Law:
La. Rev Stat § 14-43-5 (2018): (selected sections)
- No person shall intentionally expose another to the human immunodeficiency virus (HIV) through sexual contact without the knowing and lawful consent of the victim, if at the time of the exposure the infected person knew he was HIV positive.
- No person shall intentionally expose another to HIV through any means or contact without the knowing and lawful consent of the victim, if at the time of the exposure the infected person knew he was HIV positive.
- No person shall intentionally expose a first responder to HIV through any means or contact without the knowing and lawful consent of the first responder when the offender knows at the time of the offense that he is HIV positive, and has reasonable grounds to believe the victim is a first responder acting in the performance of his duty.
- (1) Whoever commits the crime of intentional exposure to HIV shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.
(2) Whoever commits the crime of intentional exposure to HIV against a first responder shall be fined not more than six thousand dollars, imprisoned with or without hard labor for not more than eleven years, or both.
- (1) It is an affirmative defense, if proven by a preponderance of the evidence, that the person exposed to HIV knew the infected person was infected with HIV, knew the action could result in infection with HIV, and gave consent to the action with that knowledge.
(2) It is also an affirmative defense that the transfer of bodily fluid, tissue, or organs occurred after advice from a licensed physician that the accused was noninfectious, and the accused disclosed his HIV-positive status to the victim.
(3) It is also an affirmative defense that the HIV-positive person disclosed his HIV-positive status to the victim, and took practical means to prevent transmission as advised by a physician or other healthcare provider or is a healthcare provider who was following professionally accepted infection control procedures.
Mississippi, Tennessee, Alabama, and Louisiana share similarities in their approach to HIV laws, with stringent penalties for non-disclosure and intentional transmission. While there have been efforts to reform these laws, the Deep South as a whole still faces challenges in addressing the stigma and legal issues surrounding HIV. This comparison of these Deep South states’ HIV laws highlights the need for continued advocacy and awareness to promote more just and evidence-based approaches to dealing with HIV-related legal matters, in order to destigmatize and decriminalize living with HIV.
More detail by state regarding current HIV laws and policies can be found at the Center for HIV Law & Policy’s Sourcebook on State and Federal law.