...virtually seamless. This, however, the point at which law and literary works diverge. Although we embrace creativity in literary endeavors, we would prefer that the foundation of our legal system be something more substantial. Unfortunately, where U.S. criminal HIV exposure statutes are concerned, there appears to be little if any concrete connection between proscribed behaviors and what we know about HIV transmission risk.

Twenty-four states in the U.S. make it criminal offense for a person who has HIV to expose another to the virus through consensual sexual activities. The relationship between the activities prohibited by these laws and actual risk of virus transmission is tenuous at best. Few other areas of law impose such severe penalties for infractions that are so unlikely to cause physical harm.

Consider the following example: In Ohio, undisclosed HIV exposure through sexual intercourse is classified as felonious assault. (1) If convicted, the penalty is two to eight years in prison. (2) Prohibited behaviors include anal, vaginal, and oral intercourse. (3) The statute makes no distinction between higher-risk sexual activities such as anal intercourse and lower-risk activities such as oral sex. Yet the likelihood of HIV being transmitted through oral sex, especially cunnilingus, is so remote that in the twenty years since HIV was first recognized as a threat to the public health, there have been no more than a handful of suspected cases of transmission via this route.

Following a brief survey of U.S. state criminal HIV exposure laws, we take a closer look at the tenuous relationship between these laws and the actual likelihood of harm posed by the behaviors they proscribe. We review available evidence regarding the probability of HIV transmission associated with the various sexual activities addressed in the statutes and then demonstrate, through an in-depth examination of several states' statutes, typical conflicts that arise when the statutory prohibitions are considered in light of the actual risks posed by various sexual behaviors. We conclude by outlining an approach for evaluating existing statutes or drafting new ones that, were a state to choose to revise or enact such a statute, would lead to a more logical and perhaps more defensible criminal HIV exposure law.

STATES ADOPTING LEGISLATION TO ADDRESS UNDISCLOSED EXPOSURE TO HIV THROUGH SEX

According to Lazzarini et al.'s 2002 survey, from 1986 through 2001 twenty-seven U.S. states enacted some kind of criminal HIV exposure or transmission statute. (4) As of June 2003, this number remains the same. Thirteen of these states specifically criminalize HIV exposure or transmission through sexual contact. These statutes differ as to whether intent to transmit is required for conviction and whether procuring a partner's informed consent prior to sexual interactions and/or engaging in protected sex serve to exculpate HIV-positive persons or to exempt them from prosecution entirely.

Along with the thirteen states that specifically criminalize HIV exposure through sexual activity, another six criminalize the transfer of "bodily fluids" from a person who knows that he or she is infected with HIV to another. Similar to those laws criminalizing exposure to HIV through consensual sexual activities, these statutes differ as to whether specific intent to transmit the virus is required for prosecution. All six of these statutes allow a person who has HIV to engage in consensual sexual activities with the informed consent of the HIV-positive person's partner(s). None of these statutes distinguish between protected or unprotected intercourse.

Another group of five states criminalize potential exposure to HIV without specifying the behavior that leads to exposure. These statutes differ on whether specific intent to transmit HIV is necessary for prosecution and whether consent can serve to excuse the breach of the law. Like the transfer of body fluids statutes, these general statutes do not address the difference between protected and unprotected sex. Finally, three additional statutes criminalize the sale or donation of blood or semen for purposes other than scientific research. Since both the general exposure statutes and those that refer to transfer of bodily fluids could be used to prosecute sexual exposure cases, twenty-four extant HIV exposure statutes could conceivably be applied to cases of undisclosed HIV exposure through sexual interactions.

Though technically not statutes in and of themselves, twelve states have adopted, either along with other HIV-specific statutes or as their only HIV exposure-related legislation, provisions making prostitution and/or solicitation when a person knows that he or she has HIV a more serious crime than results from participating in these criminalized acts when a person is not, or believes that he or she is not, HIV-positive. (5) In two instances (Colorado and Utah), the provision for prostitution and/or solicitation is the state's only legislation related to HIV exposure through consensual sex. (6) These types of provisions, called "sentence enhancements," also are used to increase the penalty when an individual who knows that he or she has HIV perpetrates sexual assault.

PROBABILITIES OF TRANSMISSION

The various criminal HIV exposure laws enacted in the U.S. require that HIV-positive persons disclose their status to prospective partners before engaging in a wide range of sexual activities, including protected and unprotected anal and vaginal intercourse, cunnilingus, fellatio, analingus, digital masturbation of a partner, and genital stimulation of a partner with a sex toy or other object. The intent of these laws, presumably, is to protect the partner from being exposed to the virus, thereby preventing HIV transmission. However, the likelihood of infection--even if exposure does occur--is very small for most of these activities and is negligible for the remainder.

Unprotected anal intercourse is the riskiest sexual activity. The probability of HIV being transmitted from an HIV-infected man to his uninfected partner through a single act of unprotected anal intercourse is approximately 1 in 50 if the infected man is the insertive partner and 1 in 2000 if he is the receptive partner. (7) The risks associated with unprotected vaginal intercourse are relatively small as well: approximately 1 in 1000 for male-to-female transmission and 1 in 2000 for female-to-male transmission. (8) Less is known about the probability of HIV transmission through oral sex. (9) Although there have been a small number of cases in which HIV reportedly was transmitted through cunnilingus, analingus, or being the insertive partner in fellatio, the risk associated with these activities is generally (though not universally) considered to be negligible. (10) In contrast, while the risk to the receptive ("giving") partner in fellatio is less than the risk associated with anal or vaginal intercourse, it is not negligible. (11) One study estimated the per-act risk to the partner performing fellatio to be 1 in 2500. (12) Co-factors that can increase the likelihood that HIV would be transmitted by these activities include gum disease, infection of the mouth or throat by a sexually transmitted infection (STI), or other lesions in the oral cavity.

When used correctly and consistently, latex condoms reduce the likelihood of HIV transmission by as much as 90% or more. (13) Stated another way, condoms reduce the probability of HIV transmission by about a factor of 10. For example, the probability of an infected man transmitting the virus to his partner during a single act of condom-protected anal intercourse is 1 in 500 if the infected man is the insertive partner and 1 in 20,000 if he is the receptive partner.

These transmission estimates assume that the partners engage in the specified sexual activity only once. Multiple sex acts increase the probability of transmission in an approximately linear fashion. (14) For example, engaging in the same activity twice approximately doubles the risk of transmission. (15)

It is important to note that there is considerable uncertainty surrounding the transmission probabilities cited above. These difficult-to-estimate probabilities...

NOTE: All illustrations and photos have been removed from this article.



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