Task force hears legal primer on HIV/STI criminalization, other states’ approaches and Louisiana case law

The HR 3 22 Task Force heard a two‑part legal briefing on Sept. 10 about criminal law concepts and how states treat intentional transmission or exposure to infectious diseases, including HIV. Presenters described differing approaches in other states, Louisiana’s statutory elements and appellate rulings, and practical hurdles that prosecutors face when pursuing cases.

Task force staff summarized comparative research showing that many states have moved disease‑transmission matters into public‑health codes rather than criminal codes. "California is entirely dealt with via health code at this point," a staff member said, and the staff brief cited California’s law requiring specific intent to transmit and a definition of "practical means" to prevent transmission. The staff memo noted New York, Delaware and Florida handle a mix of reportable infections in health code; Delaware lists hepatitis B, herpes and HPV in code and has no criminal STI statutes, while New York’s reportable disease lists include primarily tuberculosis‑style provisions and, among STIs, lists hepatitis B and neonatal herpes in certain contexts.

Zach Daniels, a task force member who gave a legal overview, explained criminal‑law basics: prosecutors must prove every element of an offense beyond a reasonable doubt, and most criminal statutes include a mens rea (mental state) element. Daniels distinguished general intent (awareness of conduct) from specific intent (actively desiring a particular result), and emphasized that Louisiana’s intentional‑exposure law historically required proof the defendant knew they were HIV‑positive and did not disclose that status in contexts the statute covers.

Daniels said Louisiana’s appellate record is small: his review found only 19 reported cases under the intentional‑exposure statute, compared with thousands of opinions for crimes such as murder. He said that limited case law reflects three realities: many potential incidents never lead to arrests; many arrests do not become prosecutions; and most filed cases resolve in plea bargains (he cited that roughly 95 percent of prosecuted cases statewide resolve by plea). "Functionally, most of these cases are not provable," a local prosecutor quoted in the briefing said, the presenters noted.

Presenters reviewed statutory affirmative defenses added or clarified by 2018 changes: for instance, a defendant may assert by a preponderance of evidence that (1) the person exposed knew the defendant was HIV positive and consented; (2) the defendant took practical means to prevent transmission as advised by a health‑care provider; or (3) exposure occurred after medical advice or because of professionally accepted infection‑control measures. Daniels explained those defenses shift burdens in trial practice: an affirmative defense must be raised and supported by the defense, after which the state must disprove it.

Task force members questioned how juries would evaluate technical medical issues and transmission risk. Daniels said expert witnesses are often required to educate juries about transmission science, but expert testimony is expensive, laborious to qualify, and can be subject to intense cross‑examination. He added that prosecutors who once used low‑risk exposures such as spitting as grounds for charges have seen those theories fail; Daniels said he could not find reported convictions based solely on spitting or scratching, and that courts now focus on conduct that presents a substantial risk of transmission.

Members discussed how other states prosecute related conduct. The briefing noted Texas repealed its HIV‑specific statute but prosecutes some cases under other offenses (for example, charging attempted murder or using a statute that treats an infected person’s blood as a dangerous weapon). West Virginia and some other states have eliminated standalone HIV criminal statutes and rely on public‑health measures. California’s health‑code approach, however, imposes misdemeanor penalties for willful exposure under defined circumstances and requires proof of specific intent or a failure to take "practical means." New York’s health code contains a list of reportable diseases and misdemeanors for knowing infection with some infections in particular settings.

The presenters summarized relevant Louisiana appellate examples: convictions and pleas have occurred in cases involving forcible sexual assault where the defendant was HIV‑positive and the exposure accompanied other violent crimes (an example cited was State v. Roberts). In many consensual‑relationship prosecutions, courts weighed credibility disputes over disclosure, whether transmission could be proved, and whether the state had produced sufficient corroborating evidence. Daniels emphasized that demonstrating an actual transmission is legally and medically different from showing an exposure; some reported Louisiana cases involved transmission, others prosecution on exposure allegations tied to sexual assault.

No statutory changes were proposed at the meeting. Instead, members asked staff to continue compiling comparative state statutes, published case law and research on public‑health approaches so the task force can consider legal, evidentiary and medical realities before drafting recommendations.