Prevention, Not Prejudice: The Role of Federal Guidelines in HIV-Criminalization Reform

Thirty-four states and two U.S. territories have criminal statutes that specifically impose criminal liability for HIV transmission, exposure, or nondisclosure. With possible sentences ranging up to thirty years, these statutes have even provided the basis for convicting HIV positive individuals who never actually transmitted the virus. To address the unreasonable prosecutions of these individuals, Representative Barbara Lee of California introduced the Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act (REPEAL Act) to the U.S. House of Representatives on September 23, 2011. If passed, the REPEAL Act would require a systematic review of these statutes and the development of new federal guidelines to guide nationwide HIV criminalization reform. This Note investigates the federal government’s previous attempts at setting national guidelines for HIV criminalization and offers recommendations for improvements that could be made under the REPEAL Act. In particular, I argue that HIV-specific statutes should be reformed, not repealed. To that end, I urge Congress to adopt new federal guidelines that provide clearer notice of scientifically established modes of HIV transmission, set adequate procedural safeguards to prevent unfair prosecutions, establish guidelines for proportionate sentencing, and guarantee adequate federal funding for reform