REPEAL HIV Discrimination Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 1305 To modernize laws and policies, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 24, 2021 Ms. LEE of California (for herself, Miss GONZA´LEZ-COLO´N, Mr. KHANNA, Mrs. WATSON COLEMAN, Mr. SIRES, Mr. HASTINGS, Mr. FOSTER, Ms. MCCOLLUM, Mr. CICILLINE, Mr. SCHIFF, Mr. PRICE of North Carolina, Ms. WASSERMAN SCHULTZ, Mr. KILMER, Mr. CARSON, Ms. WILSON of Florida, Mr. SWALWELL, Mr. POCAN, Mrs. HAYES, Ms. MOORE of Wis- consin, Ms. CHU, Ms. BASS, and Mr. MCGOVERN) introduced the fol- lowing bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Energy and Commerce, and Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdic- tion of the committee concerned A BILL To modernize laws and policies, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Repeal Existing Poli- 4 cies that Encourage and Allow Legal HIV Discrimination 5 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 1305 IH Act of 2021’’ or the ‘‘REPEAL HIV Discrimination Act 1 of 2021’’. 2 SEC. 2. FINDINGS. 3 The Congress makes the following findings: 4 (1) At present, 32 States and 2 United States 5 territories have criminal statutes based on perceived 6 exposure to HIV, rather than behaviors motivated by 7 an intent to harm, presenting a significant risk of 8 transmission and resulting in actual transmission of 9 HIV to another. Eleven States have HIV-specific 10 laws that make spitting or biting a felony, even 11 though it is not possible to transmit HIV via saliva. 12 Twenty-four States require persons who are aware 13 that they have HIV to disclose their status to sexual 14 partners, regardless of whether they are non-infec- 15 tious. Fourteen of these 24 States also require dis- 16 closure to needle-sharing partners. Twenty-five 17 States criminalize one or more behaviors that pose 18 a low or negligible risk for HIV transmission. 19 (2) HIV-specific criminal laws are classified as 20 felonies in 28 States; in three States, a person’s ex- 21 posure to another to HIV does not subject the per- 22 son to criminal prosecution for that act alone but 23 may result in a sentence enhancement. Eighteen 24 States impose sentences of up to 10 years per viola- 25 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 1305 IH tion; seven impose sentences between 11 and 20 1 years; and five impose sentences of greater than 20 2 years. 3 (3) When members of the Armed Forces ac- 4 quire HIV, they are issued orders that require them 5 to disclose and use a condom under all cir- 6 cumstances including when the known risk of trans- 7 mission is zero. Failure to disclose can result in 8 prosecution under the Uniform Code of Military Jus- 9 tice (UCMJ). 10 (4) The number of prosecutions, arrests, and 11 instances where HIV-based charges are used to in- 12 duce plea agreements is unknown. Because State- 13 level prosecution and arrest data are not readily 14 available in any national legal database, the societal 15 impact of these laws may be underestimated and 16 most cases that go to trial are not reduced to writ- 17 ten, published opinions. 18 (5) State and Federal criminal law does not 19 currently reflect the four decades of medical ad- 20 vances and discoveries made with regard to trans- 21 mission and treatment of HIV/AIDS. 22 (6) According to CDC, correct and consistent 23 male or female condom use, or adherence to a pre- 24 exposure prophylaxis (PrEP) regimen that results in 25 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 1305 IH viral suppression, are very effective in preventing 1 HIV transmission. However, most State HIV-spe- 2 cific laws and prosecutions do not treat the use of 3 a condom during sexual intercourse or adherence to 4 PrEP as a mitigating factor or evidence that the de- 5 fendant did not intend to transmit HIV. 6 (7) Criminal laws and prosecutions do not take 7 into account the benefits of effective antiretroviral 8 medications, which suppress the virus to extremely 9 low levels and further reduce the already low risk of 10 transmitting HIV to near zero. 11 (8) In addition to HIV-specific criminal laws, 12 general criminal laws are often misused to prosecute 13 people based on their HIV status. Although HIV, 14 and even AIDS, currently is viewed as a treatable, 15 chronic, medical condition, people living with HIV 16 have been charged under aggravated assault, at- 17 tempted murder, and even bioterrorism statutes be- 18 cause prosecutors, courts, and legislators continue to 19 view and characterize the blood, semen, and saliva of 20 people living with HIV as a ‘‘deadly weapon’’. 21 (9) Multiple peer-reviewed studies demonstrate 22 that HIV-specific laws do not reduce risk-taking be- 23 havior or increase disclosure by people living with or 24 at risk of HIV, and there is increasing evidence that 25 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 1305 IH these laws reduce the willingness to get tested. Fur- 1 thermore, placing legal responsibility for preventing 2 the transmission of HIV and other pathogens that 3 can be sexually transmitted exclusively on people di- 4 agnosed with a sexually transmitted infection under- 5 mines the public health message that all people are 6 responsible for practicing behaviors that protect 7 themselves from HIV and other sexually transmitted 8 infections. Unfortunately, some State laws create an 9 expectation of disclosure work against public health 10 communication and discourage risk-reduction meas- 11 ures that could prevent transmission as a result of 12 those who are acutely infected and unaware of their 13 status. 14 (10) The identity of an individual subject to an 15 HIV-based prosecution is broadcast through media 16 reports, potentially destroying employment opportu- 17 nities and relationships and violating the person’s 18 right to privacy. 19 (11) Individuals who are convicted after an 20 HIV-based prosecution often must register as sex of- 21 fenders even in cases involving consensual sexual ac- 22 tivity. Their employability is destroyed, and their 23 family relationships are fractured. 24 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 1305 IH (12) The United Nations, including the Joint 1 United Nations Programme on HIV/AIDS 2 (UNAIDS), urges governments to ‘‘limit criminaliza- 3 tion to cases of intentional transmission.’’ This re- 4 quirement would limit prosecutions to situations 5 ‘‘where a person knows his or her HIV-positive sta- 6 tus, acts with the intention to transmit HIV, and 7 does in fact transmit it’’. UNAIDS also recommends 8 that criminal law should not be applied to cases 9 where there is no significant risk of transmission. 10 (13) In 2010, the Federal Government released 11 the first ever National HIV/AIDS Strategy (NHAS), 12 which addressed HIV-specific criminal laws, stating: 13 ‘‘While we understand the intent behind these laws, 14 they may not have the desired effect and they may 15 make people less willing to disclose their status by 16 making people feel at even greater risk of discrimi- 17 nation. In some cases, it may be appropriate for leg- 18 islators to reconsider whether existing laws continue 19 to further the public interest and public health. In 20 many instances, the continued existence and enforce- 21 ment of these types of laws run counter to scientific 22 evidence about routes of HIV transmission and may 23 undermine the public health goals of promoting HIV 24 screening and treatment.’’. The NHAS also states 25 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 1305 IH that State legislatures should consider reviewing 1 HIV-specific criminal statutes to ensure that they 2 are consistent with current knowledge of HIV trans- 3 mission and support public health approaches to pre- 4 venting and treating HIV. 5 (14) The Global Commission on HIV and the 6 Law was launched in June 2010 to examine laws 7 and practices that criminalize people living with and 8 vulnerable to HIV and to develop evidence-based rec- 9 ommendations for effective HIV responses. The 10 Commission calls for ‘‘governments, civil society and 11 international bodies to repeal punitive laws and 12 enact laws that facilitate and enable effective re- 13 sponses to HIV prevention, care and treatment serv- 14 ices for all who need them’’. The Commission rec- 15 ommends against the enactment of ‘‘laws that ex- 16 plicitly criminalize HIV transmission, exposure or 17 non-disclosure of HIV status, which are counter- 18 productive’’. 19 (15) In February 2019, the Department of 20 Health and Human Services (HHS) launched ‘‘End- 21 ing the HIV Epidemic: A Plan for America,’’ a new 22 initiative with an ambitious goal to end the domestic 23 HIV epidemic in ten years by reducing new cases of 24 HIV by 75 percent by 2025 and by 90 percent by 25 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 1305 IH 2030. In this plan, HHS notes that stigma ‘‘can be 1 a debilitating barrier preventing people living with, 2 or at risk for, HIV from receiving the health care, 3 services, and respect they need and deserve.’’ Many 4 of the States and jurisdictions identified as a pri- 5 ority for the first five years of the plan have stigma- 6 based criminal statutes for perceived exposure to 7 HIV. These statutes run counter to the goals of this 8 new initiative and stand in the way of ending the do- 9 mestic HIV epidemic. 10 SEC. 3. SENSE OF CONGRESS REGARDING LAWS OR REGU- 11 LATIONS DIRECTED AT PEOPLE LIVING WITH 12 HIV. 13 It is the sense of Congress that Federal and State 14 laws, policies, and regulations regarding people living with 15 HIV— 16 (1) should not place unique or additional bur- 17 dens on such individuals solely as a result of their 18 HIV status; and 19 (2) should instead demonstrate a public health- 20 oriented, evidence-based, medically accurate, and 21 contemporary understanding of— 22 (A) the multiple factors that lead to HIV 23 transmission; 24 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 1305 IH (B) the relative risk of demonstrated HIV 1 transmission routes; 2 (C) the current health implications of liv- 3 ing with HIV; 4 (D) the associated benefits of treatment 5 and support services for people living with HIV; 6 and 7 (E) the impact of punitive HIV-specific 8 laws, policies, regulations, and judicial prece- 9 dents and decisions on public health, on people 10 living with or affected by HIV, and on their 11 families and communities. 12 SEC. 4. REVIEW OF FEDERAL AND STATE LAWS. 13 (a) REVIEW OF FEDERAL AND STATE LAWS.— 14 (1) IN GENERAL.—Not later than 90 days after 15 the date of the enactment of this Act, the Attorney 16 General, the Secretary of Health and Human Serv- 17 ices, and the Secretary of Defense acting jointly (in 18 this section referred to as the ‘‘designated officials’’) 19 shall initiate a national review of Federal and State 20 laws, policies, regulations, and judicial precedents 21 and decisions regarding criminal and related civil 22 commitment cases involving people living with HIV/ 23 AIDS, including in regard to the Uniform Code of 24 Military Justice (UCMJ). 25 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 1305 IH (2) CONSULTATION.—In carrying out the re- 1 view under paragraph (1), the designated officials 2 shall seek to include diverse participation from, and 3 consultation with, each of the following: 4 (A) Each State. 5 (B) State attorneys general (or their rep- 6 resentatives). 7 (C) State public health officials (or their 8 representatives). 9 (D) State judicial and court system offi- 10 cers, including judges, district attorneys, pros- 11 ecutors, defense attorneys, law enforcement, 12 and correctional officers. 13 (E) Members of the United States Armed 14 Forces, including members of other Federal 15 services subject to the UCMJ. 16 (F) People living with HIV/AIDS, particu- 17 larly those who have been subject to HIV-re- 18 lated prosecution or who are from minority 19 communities whose members have been dis- 20 proportionately subject to HIV-specific arrests 21 and prosecution. 22 (G) Legal advocacy and HIV/AIDS service 23 organizations that work with people living with 24 HIV/AIDS. 25 VerDate Sep 11 2014 03:59 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1305.IH H1305 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 1305 IH (H) Nongovernmental health organizations 1 that work on behalf of people living with HIV/ 2 AIDS, including syringe services programs, 3 LGBTQ-focused health organizations, and orga- 4 nizations who serve people who engage in sex 5 work. 6 (I) Trade organizations or associations 7 representing persons or entities described in 8 subparagraphs (A) through (G). 9 (3) RELATION TO OTHER REVIEWS.—In car- 10 rying out the review under paragraph (1), the des- 11 ignated officials may utilize other existing reviews of 12 criminal and related civil commitment cases involv- 13 ing people living with HIV, including any such re- 14 view conducted by any Federal or State agency or 15 any public health, legal advocacy, or trade organiza- 16 tion or association if the designated officials deter- 17 mines that such reviews were conducted in accord- 18 ance with the principles set forth in section 3. 19 (b) REPORT.—Not later than 180 days after initi- 20 ating the review required by subsection (a), the Attorney 21 General shall transmit to the Congress and make publicly 22 available a report co [Text truncated for display. Full text available on Congress.gov.]