Maryland Man Charged With Knowingly Spreading HIV

The Baltimore Sun reported September 10 a Maryland man was being charged with having sex with a 13-year-old boy, and also with "knowingly transferring" HIV.

The criminal transmission charge would be routine in many other states, but it has hardly ever been used in Maryland. UPI, picking up the story, reported, "Public health advocates call the charge arcane and ineffective, discouraging HIV testing and perpetuating a stigma against people with the disease. At the height of the AIDS scare during the 1980s and 1990s, 33 states, including Maryland, passed laws to criminalize the spread of HIV but in recent years the federal government has modified its AIDS/HIV policy and recommended against HIV criminalization, the [Sun] said Monday."

We agree with the unnamed "public health advocates." We also note that HIV transmission laws are unnecessary. The man charged faces up to 30 years in prison for having sex with a minor, and if he did in fact transmit HIV he can be charged with assault and battery causing actual bodily harm.

HIV-specific criminal statues do not deter inappropriate sex. They do, however, perpetuate stigma and deter testing, by making knowing one's HIV status an element of a possible future crime. The laws are subject to selective enforcement -- especially against poor women of color -- and abuse by angry ex-partners, and are in many cases unconstitutionally vague.

A case in point: Section18-601.1 of the Maryland Code declares, "A person with HIV who knowingly transfers or attempts to transfer the virus to another individual is guilty of a misdemeanor."

Sounds clear enough -- but is it? Does "knowingly" mean the defendant knew he could be transferring the virus or that he was transferring the virus? If the answer is was, it should be impossible to convict, because transmission does not occur in every unprotected sexual contact, and the defendant would have no way of knowing whether the contact he was engaged in at the moment was transmitting HIV or not. If the answer is could -- well, that's not what the statute says. The section is as badly drafted as it is conceived, and prosecutors should think twice before charging defendants under it.