II 

113TH CONGRESS 

1ST SESSION S. 1790 

To modernize laws, and eliminate discrimination, with respect to people living 

with HIV/AIDS, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 10, 2013 

Mr. COONS introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To modernize laws, and eliminate discrimination, with respect 

to people living with HIV/AIDS, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Repeal Existing Poli5 cies that Encourage and Allow Legal HIV Discrimination 

6 Act of 2013’’ or the ‘‘REPEAL HIV Discrimination Act 

7 of 2013’’. 

8 SEC. 2. FINDINGS. 

9 The Congress makes the following findings: 


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1 (1) At present, 32 States and 2 United States 

2 territories have criminal statutes based on perceived 

3 exposure to HIV, rather than actual transmission of 

4 HIV to another. Thirteen States have HIV-specific 

5 laws that make spitting or biting a felony, even 

6 though it is not possible to transmit HIV via saliva. 

7 (2) According to the Centers for Disease Con8 trol and Prevention (CDC), HIV is only transmitted 

9 through blood, semen, vaginal fluid, and breast milk. 

10 (3) Prosecutions for perceived exposure, non11 disclosure, or unintentional transmission of HIV 

12 have occurred in at least 39 States under general or 

13 HIV-specific laws. 

14 (4) Even in the absence of HIV transmission, 

15 people living with HIV have been given sentences of 

16 up to 35 years based on exaggerated fears of HIV, 

17 regardless of actual risk of transmission. 

18 (5) State and Federal criminal law does not 

19 currently reflect the three decades of medical ad20 vances and discoveries made with regard to trans21 mission and treatment of HIV. 

22 (6) According to CDC, correct and consistent 

23 male or female condom use is very effective in pre24 venting HIV transmission. However, most State 

25 HIV-specific laws and prosecutions do not treat the 


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1 use of a condom during sexual intercourse as a miti2 gating factor or evidence that the defendant did not 

3 intend to transmit HIV. 

4 (7) Criminal laws and prosecutions do not take 

5 into account the benefits of effective antiretroviral 

6 medications, which reduce the HIV virus to 

7 undetectable levels and further reduce the already 

8 low risk of transmitting the HIV to near-zero. 

9 (8) Although HIV/AIDS currently is viewed as 

10 a treatable, chronic, medical condition, people living 

11 with HIV have been charged under aggravated as12 sault, attempted murder, and even bioterrorism stat13 utes because prosecutors, courts, and legislators con14 tinue to view and characterize the blood, semen, and 

15 saliva of people living with HIV as a ‘‘deadly weap16 on’’. 

17 (9) Multiple peer-reviewed studies demonstrate 

18 that HIV-specific laws do not reduce risk-taking be19 havior or increase disclosure by people living with or 

20 at risk of HIV, and there is increasing evidence that 

21 these laws reduce the willingness to get tested. Fur22 thermore, placing legal responsibility for preventing 

23 the transmission of HIV and other pathogens exclu24 sively on people diagnosed with HIV, and without 

25 consideration of other pathogens that can be sexuVerDate Mar 15 2010 02:15 Dec 11, 2013 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1790.IS S1790

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1 ally transmitted, undermines the public health mes2 sage that all people should practice behaviors that 

3 protect themselves and their partners from HIV and 

4 other sexually transmitted diseases. 

5 (10) The identity of an individual accused of 

6 violating existing HIV-specific restrictions is broad7 cast through media reports, potentially destroying 

8 employment opportunities and relationships and vio9 lating the person’s right to privacy. 

10 (11) Individuals who are convicted for HIV ex11 posure, nondisclosure, or transmission often must 

12 register as sex offenders even in cases of consensual 

13 sexual activity. Their employability is destroyed and 

14 their family relationships are fractured. 

15 (12) The United Nations, including the Joint 

16 United Nations Programme on HIV/AIDS 

17 (UNAIDS), urges governments to ‘‘limit criminaliza18 tion to cases of intentional transmission. Such re19 quirement indicates a situation where a person 

20 knows his or her HIV-positive status, acts with the 

21 intention to transmit HIV, and does in fact transmit 

22 it’’. UNAIDS also recommends that criminal law 

23 should not be applied to cases where there is no sig24 nificant risk of transmission. 


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1 (13) The Global Commission on HIV and the 

2 Law was launched in June 2010 to examine laws 

3 and practices that criminalize people living with and 

4 vulnerable to HIV and to develop evidence-based rec5 ommendations for effective HIV responses. The 

6 Commission calls for ‘‘governments, civil society and 

7 international bodies to repeal punitive laws and 

8 enact laws that facilitate and enable effective re9 sponses to HIV prevention, care and treatment serv10 ices for all who need them’’. The Commission rec11 ommends against the enactment of ‘‘laws that ex12 plicitly criminalise HIV transmission, exposure or 

13 non-disclosure of HIV status, which are counter14 productive’’. 

15 (14) In 2010, the President released a National 

16 HIV/AIDS Strategy (NHAS), which addressed HIV17 specific criminal laws, stating: ‘‘[W]hile we under18 stand the intent behind [these] laws, they may not 

19 have the desired effect and they may make people 

20 less willing to disclose their status by making people 

21 feel at even greater risk of discrimination. In some 

22 cases, it may be appropriate for legislators to recon23 sider whether existing laws continue to further the 

24 public interest and public health. In many instances, 

25 the continued existence and enforcement of these 


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1 types of laws run counter to scientific evidence about 

2 routes of HIV transmission and may undermine the 

3 public health goals of promoting HIV screening and 

4 treatment.’’. The NHAS also states that State legis5 latures should consider reviewing HIV-specific crimi6 nal statutes to ensure that they are consistent with 

7 current knowledge of HIV transmission and support 

8 public health approaches to preventing and treating 

9 HIV. 

10 (15) In February 2013, the President’s Advi11 sory Council on AIDS (PACHA) passed a resolution 

12 stating ‘‘all U.S. law should be consistent with cur13 rent medical and scientific knowledge and accepted 

14 human rights-based approaches to disease control 

15 and prevention and avoid imposition of unwarranted 

16 punishment based on health and disability status’’. 

17 SEC. 3. SENSE OF CONGRESS REGARDING LAWS OR REGU18 LATIONS DIRECTED AT PEOPLE LIVING WITH 

19 HIV/AIDS. 

20 It is the sense of Congress that Federal and State 

21 laws, policies, and regulations regarding people living with 

22 HIV/AIDS— 

23 (1) should not place unique or additional bur24 dens on such individuals solely as a result of their 

25 HIV status; and 


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1 (2) should instead demonstrate a public health2 oriented, evidence-based, medically accurate, and 

3 contemporary understanding of— 

4 (A) the multiple factors that lead to HIV 

5 transmission; 

6 (B) the relative risk of demonstrated HIV 

7 transmission routes; 

8 (C) the current health implications of liv9 ing with HIV; 

10 (D) the associated benefits of treatment 

11 and support services for people living with HIV; 

12 and 

13 (E) the impact of punitive HIV-specific 

14 laws, policies, regulations, and judicial prece15 dents and decisions on public health, on people 

16 living with or affected by HIV, and on their 

17 families and communities. 

18 SEC. 4. REVIEW OF FEDERAL AND STATE LAWS. 

19 (a) REVIEW OF FEDERAL AND STATE LAWS.— 

20 (1) IN GENERAL.—Not later than 90 days after 

21 the date of the enactment of this Act, the Attorney 

22 General, the Secretary of Health and Human Serv23 ices, and the Secretary of Defense acting jointly (in 

24 this section referred to as the ‘‘designated officials’’) 

25 shall initiate a national review of Federal and State 


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1 laws, policies, regulations, and judicial precedents 

2 and decisions regarding criminal and related civil 

3 commitment cases involving people living with HIV/ 

4 AIDS, including in regard to the Uniform Code of 

5 Military Justice. 

6 (2) CONSULTATION.—In carrying out the re7 view under paragraph (1), the designated officials 

8 shall seek to include diverse participation from, and 

9 consultation with, each of the following: 

10 (A) Each State. 

11 (B) State attorneys general (or their rep12 resentatives). 

13 (C) State public health officials (or their 

14 representatives). 

15 (D) State judicial and court system offi16 cers, including judges, district attorneys, pros17 ecutors, defense attorneys, law enforcement, 

18 and correctional officers. 

19 (E) Members of the United States Armed 

20 Forces, including members of other Federal 

21 services subject to the Uniform Code of Military 

22 Justice. 

23 (F) People living with HIV/AIDS, particu24 larly those who have been subject to HIV-re25 lated prosecution or who are from communities 


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1 whose members have been disproportionately 

2 subject to HIV-specific arrests and prosecution. 

3 (G) Legal advocacy and HIV/AIDS service 

4 organizations that work with people living with 

5 HIV/AIDS. 

6 (H) Nongovernmental health organizations 

7 that work on behalf of people living with HIV/ 

8 AIDS. 

9 (I) Trade organizations or associations 

10 representing persons or entities described in 

11 subparagraphs (A) through (G). 

12 (3) RELATION TO OTHER REVIEWS.—In car13 rying out the review under paragraph (1), the des14 ignated officials may utilize other existing reviews of 

15 criminal and related civil commitment cases involv16 ing people living with HIV/AIDS, including any such 

17 review conducted by any Federal or State agency or 

18 any public health, legal advocacy, or trade organiza19 tion or association if the designated officials deter20 mine that such reviews were conducted in accord21 ance with the principles set forth in section 3. 

22 (b) REPORT.—Not later than 180 days after initi23 ating the review required by subsection (a), the Attorney 

24 General shall transmit to the Congress and make publicly 


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1 available a report containing the results of the review, 

2 which includes the following: 

3 (1) For each State and for the Uniform Code 

4 of Military Justice, a summary of the relevant laws, 

5 policies, regulations, and judicial precedents and de6 cisions regarding criminal cases involving people liv7 ing with HIV/AIDS, including the following: 

8 (A) A determination of whether such laws, 

9 policies, regulations, and judicial precedents 

10 and decisions place any unique or additional 

11 burdens upon people living with HIV/AIDS. 

12 (B) A determination of whether such laws, 

13 policies, regulations, and judicial precedents 

14 and decisions demonstrate a public health-ori15 ented, evidence-based, medically accurate, and 

16 contemporary understanding of— 

17 (i) the multiple factors that lead to 

18 HIV transmission; 

19 (ii) the relative risk of HIV trans20 mission routes; 

21 (iii) the current health implications of 

22 living with HIV; 

23 (iv) the associated benefits of treat24 ment and support services for people living 

25 with HIV; and 


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1 (v) the impact of punitive HIV-spe2 cific laws and policies on public health, on 

3 people living with or affected by HIV, and 

4 on their families and communities. 

5 (C) An analysis of the public health and 

6 legal implications of such laws, policies, regula7 tions, and judicial precedents and decisions, in8 cluding an analysis of the consequences of hav9 ing a similar penal scheme applied to com10 parable situations involving other communicable 

11 diseases. 

12 (D) An analysis of the proportionality of 

13 punishments imposed under HIV-specific laws, 

14 policies, regulations, and judicial precedents, 

15 taking into consideration penalties attached to 

16 violation of State laws against similar degrees 

17 of endangerment or harm, such as driving while 

18 intoxicated (DWI) or transmission of other 

19 communicable diseases, or more serious harms, 

20 such as vehicular manslaughter offenses. 

21 (2) An analysis of common elements shared be22 tween State laws, policies, regulations, and judicial 

23 precedents. 

24 (3) A set of best practice recommendations di25 rected to State governments, including State attorVerDate Mar 15 2010 02:15 Dec 11, 2013 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1790.IS S1790

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1 neys general, public health officials, and judicial offi2 cers, in order to ensure that laws, policies, regula3 tions, and judicial precedents regarding people living 

4 with HIV/AIDS are in accordance with the prin5 ciples set forth in section 3. 

6 (4) Recommendations for adjustments to the 

7 Uniform Code of Military Justice, as may be nec8 essary, in order to ensure that laws, policies, regula9 tions, and judicial precedents regarding people living 

10 with HIV/AIDS are in accordance with the prin11 ciples set forth in section 3. 

12 (c) GUIDANCE.—Within 90 days of the release of the 

13 report required by subsection (b), the Attorney General 

14 and the Secretary of Health and Human Services, acting 

15 jointly, shall develop and publicly release updated guid16 ance for States based on the set of best practice rec17 ommendations required by subsection (b)(3) in order to 

18 assist States dealing with criminal and related civil com19 mitment cases regarding people living with HIV/AIDS. 

20 (d) MONITORING AND EVALUATION SYSTEM.—With21 in 60 days of the release of the guidance required by sub22 section (c), the Attorney General and the Secretary of 

23 Health and Human Services, acting jointly, shall establish 

24 an integrated monitoring and evaluation system which in25 cludes, where appropriate, objective and quantifiable perVerDate Mar 15 2010 02:15 Dec 11, 2013 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1790.IS S1790

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1 formance goals and indicators to measure progress toward 

2 statewide implementation in each State of the best prac3 tice recommendations required in subsection (b)(3). 

4 (e) MODERNIZATION OF FEDERAL LAWS, POLICIES, 

5 AND REGULATIONS.—Within 90 days of the release of the 

6 report required by subsection (b), the designated officials 

7 shall develop and transmit to the President and the Con8 gress, and make publicly available, such proposals as may 

9 be necessary to implement adjustments to Federal laws, 

10 policies, or regulations, including to the Uniform Code of 

11 Military Justice, based on the recommendations required 

12 by subsection (b)(4), either through Executive order or 

13 through changes to statutory law. 

14 SEC. 5. RULE OF CONSTRUCTION. 

15 Nothing in this Act shall be construed to discourage 

16 the prosecution of individuals who intentionally transmit 

17 or attempt to transmit HIV to another individual. 

18 SEC. 6. NO ADDITIONAL APPROPRIATIONS AUTHORIZED. 

19 This Act shall not be construed to increase the 

20 amount of appropriations that are authorized to be appro21 priated for any fiscal year. 

22 SEC. 7. DEFINITIONS. 

23 For purposes of this Act: 

24 (1) HIV AND HIV/AIDS.—The terms ‘‘HIV’’ and 

25 ‘‘HIV/AIDS’’ have the meanings given to such terms 


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1 in section 2689 of the Public Health Service Act (42 

2 U.S.C. 300ff–88). 

3 (2) STATE.—The term ‘‘State’’ includes the 

4 District of Columbia, American Samoa, the Com5 monwealth of the Northern Mariana Islands, Guam, 

6 Puerto Rico, and the United States Virgin Islands. 

Æ 


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