I 

115TH CONGRESS 

1ST SESSION H. R. 1739 

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 

MARCH 27, 2017 

Ms. LEE (for herself, Ms. ROS-LEHTINEN, Mr. POCAN, Mr. BEYER, Ms. 

JACKSON LEE, Ms. CLARKE of New York, Ms. SPEIER, Ms. MCCOLLUM, 

Mr. ELLISON, Ms. KELLY of Illinois, Mr. KILMER, Ms. CLARK of Massachusetts, Mr. TAKANO, Ms. ROYBAL-ALLARD, Mr. BLUMENAUER, Mr. 

NADLER, Ms. NORTON, Ms. SEWELL of Alabama, Mr. DANNY K. DAVIS

of Illinois, Mr. LOWENTHAL, Ms. JAYAPAL, Mr. SWALWELL of California, 

Ms. SCHAKOWSKY, Mr. COHEN, Mr. QUIGLEY, Mr. PRICE of North Carolina, Mr. PETERS, Mr. HASTINGS, and Ms. WASSERMAN SCHULTZ) introduced the following 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 jurisdiction 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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Repeal Existing Poli3 cies that Encourage and Allow Legal HIV Discrimination 

4 Act of 2017’’ or the ‘‘REPEAL HIV Discrimination Act 

5 of 2017’’. 

6 SEC. 2. FINDINGS. 

7 The Congress makes the following findings: 

8 (1) At present, 33 States and 2 United States 

9 territories have criminal statutes based on perceived 

10 exposure to HIV, rather than actual transmission of 

11 HIV to another. Eleven States have HIV-specific 

12 laws that make spitting or biting a felony, even 

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

14 Twenty-four States require persons who are aware 

15 that they have HIV to disclose their status to sexual 

16 partners. Fourteen of these 24 States also require 

17 disclosure to needle-sharing partners. Twenty-five 

18 States criminalize one or more behaviors that pose 

19 a low or negligible risk for HIV transmission. 

20 (2) According to the Centers for Disease Con21 trol and Prevention (CDC), HIV is only transmitted 

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

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

24 felonies in 28 States; in three States, a person’s ex25 posure to another to HIV does not subject the per26 son to criminal prosecution for that act alone, but 


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1 may result in a sentence enhancement. Eighteen 

2 States impose sentences of up to 10 years; seven im3 pose sentences between 11 and 20 years; and five 

4 impose sentences of greater than 20 years. 

5 (4) When members of the Armed Forces ac6 quire HIV, they are issued orders that require them 

7 to disclose under all circumstances including when 

8 the known risk of transmission is zero. Failure to 

9 disclose can result in prosecution under the Uniform 

10 Code of Military Justice (UCMJ). 

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

12 instances where HIV-specific criminal laws are used 

13 to induce plea agreements is unknown. Because 

14 State-level prosecution and arrest data are not read15 ily available in any national legal database, the soci16 etal impact of these laws may be underestimated and 

17 most cases that go to trial are not reduced to writ18 ten, published opinions. 

19 (6) State and Federal criminal law does not 

20 currently reflect the three decades of medical ad21 vances and discoveries made with regard to trans22 mission and treatment of HIV/AIDS. 

23 (7) According to CDC, correct and consistent 

24 male or female condom use is very effective in pre25 venting HIV transmission. However, most State 


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1 HIV-specific laws and prosecutions do not treat the 

2 use of a condom during sexual intercourse as a miti3 gating factor or evidence that the defendant did not 

4 intend to transmit HIV. 

5 (8) Criminal laws and prosecutions do not take 

6 into account the benefits of effective antiretroviral 

7 medications, which reduce the HIV virus to 

8 undetectable levels and further reduce the already 

9 low risk of transmitting the HIV to near zero. 

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

11 a treatable, chronic, medical condition, people living 

12 with HIV/AIDS have been charged under aggra13 vated assault, attempted murder, and even bioter14 rorism statutes because prosecutors, courts, and leg15 islators continue to view and characterize the blood, 

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

17 ‘‘deadly weapon’’. 

18 (10) Multiple peer-reviewed studies demonstrate 

19 that HIV-specific laws do not reduce risk-taking be20 havior or increase disclosure by people living with or 

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

22 these laws reduce the willingness to get tested. Fur23 thermore, placing legal responsibility for preventing 

24 the transmission of HIV and other pathogens exclu25 sively on people diagnosed with HIV, and without 


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1 consideration of other pathogens that can be sexu2 ally transmitted, undermines the public health mes3 sage that all people should practice behaviors that 

4 protect themselves and their partners from HIV and 

5 other sexually transmitted diseases. 

6 (11) The identity of an individual accused of 

7 violating existing HIV-specific restrictions is broad8 cast through media reports, potentially destroying 

9 employment opportunities and relationships and vio10 lating the person’s right to privacy. 

11 (12) Individuals who are convicted for HIV ex12 posure, nondisclosure, or transmission often must 

13 register as sex offenders even in cases of consensual 

14 sexual activity. Their employability is destroyed and 

15 their family relationships are fractured. 

16 (13) The United Nations, including the Joint 

17 United Nations Programme on HIV/AIDS 

18 (UNAIDS), urges governments to ‘‘limit criminaliza19 tion to cases of intentional transmission. Such re20 quirement indicates a situation where a person 

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

22 intention to transmit HIV, and does in fact transmit 

23 it’’. UNAIDS also recommends that criminal law 

24 should not be applied to cases where there is no sig25 nificant risk of transmission. 


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1 (14) 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 criminalize HIV transmission, exposure or 

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

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

16 HIV/AIDS Strategy (NHAS), which addressed HIV17 specific criminal laws, stating: ‘‘While we understand 

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

19 desired effect and they may make people less willing 

20 to disclose their status by making people feel at even 

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

22 be appropriate for legislators to reconsider whether 

23 existing laws continue to further the public interest 

24 and public health. In many instances, the continued 

25 existence and enforcement of these types of laws run 


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1 counter to scientific evidence about routes of HIV 

2 transmission and may undermine the public health 

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

4 The NHAS also states that State legislatures should 

5 consider reviewing HIV-specific criminal statutes to 

6 ensure that they are consistent with current knowl7 edge of HIV transmission and support public health 

8 approaches to preventing and treating HIV. 

9 (16) In February 2013, the President’s Advi10 sory Council on AIDS (PACHA) passed a resolution 

11 stating ‘‘all U.S. law should be consistent with cur12 rent medical and scientific knowledge and accepted 

13 human rights-based approaches to disease control 

14 and prevention and avoid imposition of unwarranted 

15 punishment based on health and disability status’’. 

16 SEC. 3. SENSE OF CONGRESS REGARDING LAWS OR REGU17 LATIONS DIRECTED AT PEOPLE LIVING WITH 

18 HIV. 

19 It is the sense of Congress that Federal and State 

20 laws, policies, and regulations regarding people living with 

21 HIV— 

22 (1) should not place unique or additional bur23 dens on such individuals solely as a result of their 

24 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 (UCMJ). 

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 UCMJ. 

22 (F) People living with HIV/AIDS, particu23 larly those who have been subject to HIV-re24 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, including any such re17 view 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 mines 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 UCMJ, a sum4 mary of the relevant laws, policies, regulations, and 

5 judicial precedents and decisions regarding criminal 

6 cases involving people living with HIV, including the 

7 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. 

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 Sep 11 2014 21:38 Mar 29, 2017 Jkt 069200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H1739.IH H1739

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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 are in accordance with the principles set 

5 forth in section 3. 

6 (4) Recommendations for adjustments to the 

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

8 laws, policies, regulations, and judicial precedents re9 garding people living with HIV/AIDS are in accord10 ance with the principles set forth in section 3. Such 

11 recommendations should include any necessary and 

12 appropriate changes to ‘‘Orders to Follow Preventa13 tive Medicine Requirements’’. 

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

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

16 and the Secretary of Health and Human Services, acting 

17 jointly, shall develop and publicly release updated guid18 ance for States based on the set of best practice rec19 ommendations required by subsection (b)(3) in order to 

20 assist States dealing with criminal and related civil com21 mitment cases regarding people living with HIV. 

22 (d) MONITORING AND EVALUATION SYSTEM.—With23 in 60 days of the release of the guidance required by sub24 section (c), the Attorney General and the Secretary of 

25 Health and Human Services, acting jointly, shall establish 


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1 an integrated monitoring and evaluation system which in2 cludes, where appropriate, objective and quantifiable per3 formance goals and indicators to measure progress toward 

4 statewide implementation in each State of the best prac5 tice recommendations required in subsection (b)(3). 

6 (e) MODERNIZATION OF FEDERAL LAWS, POLICIES, 

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

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

9 shall develop and transmit to the President and the Con10 gress, and make publicly available, such proposals as may 

11 be necessary to implement adjustments to Federal laws, 

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

13 Military Justice, based on the recommendations required 

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

15 through changes to statutory law. 

16 SEC. 5. RULE OF CONSTRUCTION. 

17 Nothing in this Act shall be construed to discourage 

18 the prosecution of individuals who intentionally transmit 

19 or attempt to transmit HIV to another individual. 

20 SEC. 6. NO ADDITIONAL APPROPRIATIONS AUTHORIZED. 

21 This Act shall not be construed to increase the 

22 amount of appropriations that are authorized to be appro23 priated for any fiscal year. 

24 SEC. 7. DEFINITIONS. 

25 For purposes of this Act: 


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

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

3 section 2689 of the Public Health Service Act (42 

4 U.S.C. 300ff–88). 

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

6 District of Columbia, American Samoa, the Com7 monwealth of the Northern Mariana Islands, Guam, 

8 Puerto Rico, and the United States Virgin Islands. 

Æ 


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