II 

115TH CONGRESS 

1ST SESSION S. 2186 

To modernize laws and policies, and eliminate discrimination, with respect 

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

IN THE SENATE OF THE UNITED STATES 

DECEMBER 4, 2017 

Mr. COONS (for himself, Ms. BALDWIN, Mr. MARKEY, Mr. CASEY, Mr. MURPHY, and Mr. MERKLEY) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To modernize laws and policies, 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 2017’’ or the ‘‘REPEAL HIV Discrimination Act 

7 of 2017’’. 

8 SEC. 2. FINDINGS. 

9 The Congress makes the following findings: 


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1 (1) At present, 33 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. Eleven 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 Twenty-four States require persons who are aware 

8 that they have HIV to disclose their status to sexual 

9 partners. Fourteen of these 24 States also require 

10 disclosure to needle-sharing partners. Twenty-five 

11 States criminalize one or more behaviors that pose 

12 a low or negligible risk for HIV transmission. 

13 (2) According to the Centers for Disease Con14 trol and Prevention (CDC), HIV is only transmitted 

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

16 (3) HIV-specific criminal laws are classified as 

17 felonies in 28 States; in three States, a person’s ex18 posure to another to HIV does not subject the per19 son to criminal prosecution for that act alone, but 

20 may result in a sentence enhancement. Eighteen 

21 States impose sentences of up to 10 years; seven im22 pose sentences between 11 and 20 years; and five 

23 impose sentences of greater than 20 years. 

24 (4) When members of the Armed Forces ac25 quire HIV, they are issued orders that require them 


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1 to disclose under all circumstances including when 

2 the known risk of transmission is zero. Failure to 

3 disclose can result in prosecution under the Uniform 

4 Code of Military Justice (UCMJ). 

5 (5) The number of prosecutions, arrests, and 

6 instances where HIV-specific criminal laws are used 

7 to induce plea agreements is unknown. Because 

8 State-level prosecution and arrest data are not read9 ily available in any national legal database, the soci10 etal impact of these laws may be underestimated and 

11 most cases that go to trial are not reduced to writ12 ten, published opinions. 

13 (6) State and Federal criminal law does not 

14 currently reflect the three decades of medical ad15 vances and discoveries made with regard to trans16 mission and treatment of HIV/AIDS. 

17 (7) According to the CDC, correct and con18 sistent male or female condom use is very effective 

19 in preventing HIV transmission. However, most 

20 State HIV-specific laws and prosecutions do not 

21 treat the use of a condom during sexual intercourse 

22 as a mitigating factor or evidence that the defendant 

23 did not intend to transmit HIV. 

24 (8) Criminal laws and prosecutions do not take 

25 into account the benefits of effective antiretroviral 


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1 medications, which reduce the HIV virus to 

2 undetectable levels and further reduce the already 

3 low risk of transmitting the HIV to near zero. 

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

5 a treatable, chronic, medical condition, people living 

6 with HIV/AIDS have been charged under aggra7 vated assault, attempted murder, and even bioter8 rorism statutes because prosecutors, courts, and leg9 islators continue to view and characterize the blood, 

10 semen, and saliva of people living with HIV as a 

11 ‘‘deadly weapon’’. 

12 (10) Multiple peer-reviewed studies demonstrate 

13 that HIV-specific laws do not reduce risk-taking be14 havior or increase disclosure by people living with or 

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

16 these laws reduce the willingness to get tested. Fur17 thermore, placing legal responsibility for preventing 

18 the transmission of HIV and other pathogens exclu19 sively on people diagnosed with HIV, and without 

20 consideration of other pathogens that can be sexu21 ally transmitted, undermines the public health mes22 sage that all people should practice behaviors that 

23 protect themselves and their partners from HIV and 

24 other sexually transmitted diseases. 


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1 (11) The identity of an individual accused of 

2 violating existing HIV-specific restrictions is broad3 cast through media reports, potentially destroying 

4 employment opportunities and relationships and vio5 lating the person’s right to privacy. 

6 (12) Individuals who are convicted for HIV ex7 posure, nondisclosure, or transmission often must 

8 register as sex offenders even in cases of consensual 

9 sexual activity. Their employability is destroyed and 

10 their family relationships are fractured. 

11 (13) The United Nations, including the Joint 

12 United Nations Programme on HIV/AIDS 

13 (UNAIDS), urges governments to ‘‘limit criminaliza14 tion to cases of intentional transmission. Such re15 quirement indicates a situation where a person 

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

17 intention to transmit HIV, and does in fact transmit 

18 it’’. UNAIDS also recommends that criminal law 

19 should not be applied to cases where there is no sig20 nificant risk of transmission. 

21 (14) The Global Commission on HIV and the 

22 Law was launched in June 2010 to examine laws 

23 and practices that criminalize people living with and 

24 vulnerable to HIV and to develop evidence-based rec25 ommendations for effective HIV responses. The 


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1 Commission calls for ‘‘governments, civil society and 

2 international bodies to repeal punitive laws and 

3 enact laws that facilitate and enable effective re4 sponses to HIV prevention, care and treatment serv5 ices for all who need them’’. The Commission rec6 ommends against the enactment of ‘‘laws that ex7 plicitly criminalize HIV transmission, exposure or 

8 non-disclosure of HIV status, which are counter9 productive’’. 

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

11 HIV/AIDS Strategy (NHAS), which addressed HIV12 specific criminal laws, stating: ‘‘While we understand 

13 the intent behind these laws, they may not have the 

14 desired effect and they may make people less willing 

15 to disclose their status by making people feel at even 

16 greater risk of discrimination. In some cases, it may 

17 be appropriate for legislators to reconsider whether 

18 existing laws continue to further the public interest 

19 and public health. In many instances, the continued 

20 existence and enforcement of these types of laws run 

21 counter to scientific evidence about routes of HIV 

22 transmission and may undermine the public health 

23 goals of promoting HIV screening and treatment.’’. 

24 The NHAS also states that State legislatures should 

25 consider reviewing HIV-specific criminal statutes to 


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1 ensure that they are consistent with current knowl2 edge of HIV transmission and support public health 

3 approaches to preventing and treating HIV. 

4 (16) In February 2013, the President’s Advi5 sory Council on AIDS (PACHA) passed a resolution 

6 stating ‘‘all U.S. law should be consistent with cur7 rent medical and scientific knowledge and accepted 

8 human rights-based approaches to disease control 

9 and prevention and avoid imposition of unwarranted 

10 punishment based on health and disability status’’. 

11 SEC. 3. SENSE OF CONGRESS REGARDING LAWS OR REGU12 LATIONS DIRECTED AT PEOPLE LIVING WITH 

13 HIV. 

14 It is the sense of Congress that Federal and State 

15 laws, policies, and regulations regarding people living with 

16 HIV— 

17 (1) should not place unique or additional bur18 dens on such individuals solely as a result of their 

19 HIV status; and 

20 (2) should instead demonstrate a public health21 oriented, evidence-based, medically accurate, and 

22 contemporary understanding of— 

23 (A) the multiple factors that lead to HIV 

24 transmission; 


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1 (B) the relative risk of demonstrated HIV 

2 transmission routes; 

3 (C) the current health implications of liv4 ing with HIV; 

5 (D) the associated benefits of treatment 

6 and support services for people living with HIV; 

7 and 

8 (E) the impact of punitive HIV-specific 

9 laws, policies, regulations, and judicial prece10 dents and decisions on public health, on people 

11 living with or affected by HIV, and on their 

12 families and communities. 

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

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

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

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

17 General, the Secretary of Health and Human Serv18 ices, and the Secretary of Defense acting jointly (in 

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

20 shall initiate a national review of Federal and State 

21 laws, policies, regulations, and judicial precedents 

22 and decisions regarding criminal and related civil 

23 commitment cases involving people living with HIV/ 

24 AIDS, including in regard to the Uniform Code of 

25 Military Justice (UCMJ). 


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1 (2) CONSULTATION.—In carrying out the re2 view under paragraph (1), the designated officials 

3 shall seek to include diverse participation from, and 

4 consultation with, each of the following: 

5 (A) Each State. 

6 (B) State attorneys general (or their rep7 resentatives). 

8 (C) State public health officials (or their 

9 representatives). 

10 (D) State judicial and court system offi11 cers, including judges, district attorneys, pros12 ecutors, defense attorneys, law enforcement, 

13 and correctional officers. 

14 (E) Members of the United States Armed 

15 Forces, including members of other Federal 

16 services subject to the UCMJ. 

17 (F) People living with HIV/AIDS, particu18 larly those who have been subject to HIV-re19 lated prosecution or who are from communities 

20 whose members have been disproportionately 

21 subject to HIV-specific arrests and prosecution. 

22 (G) Legal advocacy and HIV/AIDS service 

23 organizations that work with people living with 

24 HIV/AIDS. 


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1 (H) Nongovernmental health organizations 

2 that work on behalf of people living with HIV/ 

3 AIDS. 

4 (I) Trade organizations or associations 

5 representing persons or entities described in 

6 subparagraphs (A) through (G). 

7 (3) RELATION TO OTHER REVIEWS.—In car8 rying out the review under paragraph (1), the des9 ignated officials may utilize other existing reviews of 

10 criminal and related civil commitment cases involv11 ing people living with HIV, including any such re12 view conducted by any Federal or State agency or 

13 any public health, legal advocacy, or trade organiza14 tion or association if the designated officials deter15 mines that such reviews were conducted in accord16 ance with the principles set forth in section 3. 

17 (b) REPORT.—Not later than 180 days after initi18 ating the review required by subsection (a), the Attorney 

19 General shall transmit to the Congress and make publicly 

20 available a report containing the results of the review, 

21 which includes the following: 

22 (1) For each State and for the UCMJ, a sum23 mary of the relevant laws, policies, regulations, and 

24 judicial precedents and decisions regarding criminal 


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1 cases involving people living with HIV, including the 

2 following: 

3 (A) A determination of whether such laws, 

4 policies, regulations, and judicial precedents 

5 and decisions place any unique or additional 

6 burdens upon people living with HIV. 

7 (B) A determination of whether such laws, 

8 policies, regulations, and judicial precedents 

9 and decisions demonstrate a public health-ori10 ented, evidence-based, medically accurate, and 

11 contemporary understanding of— 

12 (i) the multiple factors that lead to 

13 HIV transmission; 

14 (ii) the relative risk of HIV trans15 mission routes; 

16 (iii) the current health implications of 

17 living with HIV; 

18 (iv) the associated benefits of treat19 ment and support services for people living 

20 with HIV; and 

21 (v) the impact of punitive HIV-spe22 cific laws and policies on public health, on 

23 people living with or affected by HIV, and 

24 on their families and communities. 


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1 (C) An analysis of the public health and 

2 legal implications of such laws, policies, regula3 tions, and judicial precedents and decisions, in4 cluding an analysis of the consequences of hav5 ing a similar penal scheme applied to com6 parable situations involving other communicable 

7 diseases. 

8 (D) An analysis of the proportionality of 

9 punishments imposed under HIV-specific laws, 

10 policies, regulations, and judicial precedents, 

11 taking into consideration penalties attached to 

12 violation of State laws against similar degrees 

13 of endangerment or harm, such as driving while 

14 intoxicated (DWI) or transmission of other 

15 communicable diseases, or more serious harms, 

16 such as vehicular manslaughter offenses. 

17 (2) An analysis of common elements shared be18 tween State laws, policies, regulations, and judicial 

19 precedents. 

20 (3) A set of best practice recommendations di21 rected to State governments, including State attor22 neys general, public health officials, and judicial offi23 cers, in order to ensure that laws, policies, regula24 tions, and judicial precedents regarding people living 


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1 with HIV are in accordance with the principles set 

2 forth in section 3. 

3 (4) Recommendations for adjustments to the 

4 UCMJ, as may be necessary, in order to ensure that 

5 laws, policies, regulations, and judicial precedents re6 garding people living with HIV/AIDS are in accord7 ance with the principles set forth in section 3. Such 

8 recommendations should include any necessary and 

9 appropriate changes to ‘‘Orders to Follow Preventa10 tive Medicine Requirements’’. 

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

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

13 and the Secretary of Health and Human Services, acting 

14 jointly, shall develop and publicly release updated guid15 ance for States based on the set of best practice rec16 ommendations required by subsection (b)(3) in order to 

17 assist States dealing with criminal and related civil com18 mitment cases regarding people living with HIV. 

19 (d) MONITORING AND EVALUATION SYSTEM.—With20 in 60 days of the release of the guidance required by sub21 section (c), the Attorney General and the Secretary of 

22 Health and Human Services, acting jointly, shall establish 

23 an integrated monitoring and evaluation system which in24 cludes, where appropriate, objective and quantifiable per25 formance goals and indicators to measure progress toward 


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1 statewide implementation in each State of the best prac2 tice recommendations required in subsection (b)(3). 

3 (e) MODERNIZATION OF FEDERAL LAWS, POLICIES, 

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

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

6 shall develop and transmit to the President and the Con7 gress, and make publicly available, such proposals as may 

8 be necessary to implement adjustments to Federal laws, 

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

10 Military Justice, based on the recommendations required 

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

12 through changes to statutory law. 

13 SEC. 5. RULE OF CONSTRUCTION. 

14 Nothing in this Act shall be construed to discourage 

15 the prosecution of individuals who intentionally transmit 

16 or attempt to transmit HIV to another individual. 

17 SEC. 6. NO ADDITIONAL APPROPRIATIONS AUTHORIZED. 

18 This Act shall not be construed to increase the 

19 amount of appropriations that are authorized to be appro20 priated for any fiscal year. 

21 SEC. 7. DEFINITIONS. 

22 For purposes of this Act: 

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

24 ‘‘HIV/AIDS’’ have the meanings given to them in 


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1 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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