REPEAL HIV Discrimination Act of 2021
Bill: H.R.1305 | Sponsor: Rep. Lee, Barbara (D-CA)
Policy area: Civil Rights and Liberties, Minority Issues

Summary:
Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2021 or the REPEAL HIV Discrimination Act of 2021
This bill concerns the burdens that federal and state laws, policies, and regulations may place upon people living with human immunodeficiency virus (HIV).
The bill directs the Department of Justice (DOJ), the Department of Health and Human Services (HHS), and the Department of Defense (DOD) to initiate a national review of federal (including military) and state laws, policies, regulations, and judicial precedents and decisions regarding criminal and related civil commitment cases involving people living with HIV. DOJ must transmit to Congress and make publicly available the results of such review with related recommendations.
DOJ and HHS must (1) develop and publicly release guidance and best practice recommendations for states, and (2) establish an integrated monitoring and evaluation system to measure state progress.
DOJ, HHS, and DOD must transmit to the President and Congress any proposals necessary to implement adjustments to federal laws, policies, or regulations.
This bill shall not be construed to discourage the prosecution of individuals who intentionally transmit or attempt to transmit HIV to another individual.

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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Repeal Existing Policies that 
Encourage and Allow Legal HIV Discrimination Act of 2021'' or the 
``REPEAL HIV Discrimination Act of 2021''.

SEC. 2. FINDINGS.

    The Congress makes the following findings:
            (1) At present, 32 States and 2 United States territories 
        have criminal statutes based on perceived exposure to HIV, 
        rather than behaviors motivated by an intent to harm, 
        presenting a significant risk of transmission and resulting in 
        actual transmission of HIV to another. Eleven States have HIV-
        specific laws that make spitting or biting a felony, even 
        though it is not possible to transmit HIV via saliva. Twenty-
        four States require persons who are aware that they have HIV to 
        disclose their status to sexual partners, regardless of whether 
        they are non-infectious. Fourteen of these 24 States also 
        require disclosure to needle-sharing partners. Twenty-five 
        States criminalize one or more behaviors that pose a low or 
        negligible risk for HIV transmission.
            (2) HIV-specific criminal laws are classified as felonies 
        in 28 States; in three States, a person's exposure to another 
        to HIV does not subject the person to criminal prosecution for 
        that act alone but may result in a sentence enhancement. 
        Eighteen States impose sentences of up to 10 years per 
        violation; seven impose sentences between 11 and 20 years; and 
        five impose sentences of greater than 20 years.
            (3) When members of the Armed Forces acquire HIV, they are 
        issued orders that require them to disclose and use a condom 
        under all circumstances including when the known risk of 
        transmission is zero. Failure to disclose can result in 
        prosecution under the Uniform Code of Military Justice (UCMJ).
            (4) The number of prosecutions, arrests, and instances 
        where HIV-based charges are used to induce plea agreements is 
        unknown. Because State-level prosecution and arrest data are 
        not readily available in any national legal database, the 
        societal impact of these laws may be underestimated and most 
        cases that go to trial are not reduced to written, published 
        opinions.
            (5) State and Federal criminal law does not currently 
        reflect the four decades of medical advances and discoveries 
        made with regard to transmission and treatment of HIV/AIDS.
            (6) According to CDC, correct and consistent male or female 
        condom use, or adherence to a pre-exposure prophylaxis (PrEP) 
        regimen that results in viral suppression, are very effective 
        in preventing HIV transmission. However, most State HIV-
        specific laws and prosecutions do not treat the use of a condom 
        during sexual intercourse or adherence to PrEP as a mitigating 
        factor or evidence that the defendant did not intend to 
        transmit HIV.
            (7) Criminal laws and prosecutions do not take into account 
        the benefits of effective antiretroviral medications, which 
        suppress the virus to extremely low levels and further reduce 
        the already low risk of transmitting HIV to near zero.
            (8) In addition to HIV-specific criminal laws, general 
        criminal laws are often misused to prosecute people based on 
        their HIV status. Although HIV, and even AIDS, currently is 
        viewed as a treatable, chronic, medical condition, people 
        living with HIV have been charged under aggravated assault, 
        attempted murder, and even bioterrorism statutes because 
        prosecutors, courts, and legislators continue to view and 
        characterize the blood, semen, and saliva of people living with 
        HIV as a ``deadly weapon''.
            (9) Multiple peer-reviewed studies demonstrate that HIV-
        specific laws do not reduce risk-taking behavior or increase 
        disclosure by people living with or at risk of HIV, and there 
        is increasing evidence that these laws reduce the willingness 
        to get tested. Furthermore, placing legal responsibility for 
        preventing the transmission of HIV and other pathogens that can 
        be sexually transmitted exclusively on people diagnosed with a 
        sexually transmitted infection undermines the public health 
        message that all people are responsible for practicing 
        behaviors that protect themselves from HIV and other sexually 
        transmitted infections. Unfortunately, some State laws create 
        an expectation of disclosure work against public health 
        communication and discourage risk-reduction measures that could 
        prevent transmission as a result of those who are acutely 
        infected and unaware of their status.
            (10) The identity of an individual subject to an HIV-based 
        prosecution is broadcast through media reports, potentially 
        destroying employment opportunities and relationships and 
        violating the person's right to privacy.
            (11) Individuals who are convicted after an HIV-based 
        prosecution often must register as sex offenders even in cases 
        involving consensual sexual activity. Their employability is 
        destroyed, and their family relationships are fractured.
            (12) The United Nations, including the Joint United Nations 
        Programme on HIV/AIDS (UNAIDS), urges governments to ``limit 
        criminalization to cases of intentional transmission.'' This 
        requirement would limit prosecutions to situations ``where a 
        person knows his or her HIV-positive status, acts with the 
        intention to transmit HIV, and does in fact transmit it''. 
        UNAIDS also recommends that criminal law should not be applied 
        to cases where there is no significant risk of transmission.
            (13) In 2010, the Federal Government released the first 
        ever National HIV/AIDS Strategy (NHAS), which addressed HIV-
        specific criminal laws, stating: ``While we understand the 
        intent behind these laws, they may not have the desired effect 
        and they may make people less willing to disclose their status 
        by making people feel at even greater risk of discrimination. 
        In some cases, it may be appropriate for legislators to 
        reconsider whether existing laws continue to further the public 
        interest and public health. In many instances, the continued 
        existence and enforcement of these types of laws run counter to 
        scientific evidence about routes of HIV transmission and may 
        undermine the public health goals of promoting HIV screening 
        and treatment.''. The NHAS also states that State legislatures 
        should consider reviewing HIV-specific criminal statutes to 
        ensure that they are consistent with current knowledge of HIV 
        transmission and support public health approaches to preventing 
        and treating HIV.
            (14) The Global Commission on HIV and the Law was launched 
        in June 2010 to examine laws and practices that criminalize 
        people living with and vulnerable to HIV and to develop 
        evidence-based recommendations for effective HIV responses. The 
        Commission calls for ``governments, civil society and 
        international bodies to repeal punitive laws and enact laws 
        that facilitate and enable effective responses to HIV 
        prevention, care and treatment services for all who need 
        them''. The Commission recommends against the enactment of 
        ``laws that explicitly criminalize HIV transmission, exposure 
        or non-disclosure of HIV status, which are counterproductive''.
            (15) In February 2019, the Department of Health and Human 
        Services (HHS) launched ``Ending the HIV Epidemic: A Plan for 
        America,'' a new initiative with an ambitious goal to end the 
        domestic HIV epidemic in ten years by reducing new cases of HIV 
        by 75 percent by 2025 and by 90 percent by 2030. In this plan, 
        HHS notes that stigma ``can be a debilitating barrier 
        preventing people living with, or at risk for, HIV from 
        receiving the health care, services, and respect they need and 
        deserve.'' Many of the States and jurisdictions identified as a 
        priority for the first five years of the plan have stigma-based 
        criminal statutes for perceived exposure to HIV. These statutes 
        run counter to the goals of this new initiative and stand in 
        the way of ending the domestic HIV epidemic.

SEC. 3. SENSE OF CONGRESS REGARDING LAWS OR REGULATIONS DIRECTED AT 
              PEOPLE LIVING WITH HIV.

    It is the sense of Congress that Federal and State laws, policies, 
and regulations regarding people living with HIV--
            (1) should not place unique or additional burdens on such 
        individuals solely as a result of their HIV status; and
            (2) should instead demonstrate a public health-oriented, 
        evidence-based, medically accurate, and contemporary 
        understanding of--
                    (A) the multiple factors that lead to HIV 
                transmission;
                    (B) the relative risk of demonstrated HIV 
                transmission routes;
                    (C) the current health implications of living with 
                HIV;
                    (D) the associated benefits of treatment and 
                support services for people living with HIV; and
                    (E) the impact of punitive HIV-specific laws, 
                policies, regulations, and judicial precedents and 
                decisions on public health, on people living with or 
                affected by HIV, and on their families and communities.

SEC. 4. REVIEW OF FEDERAL AND STATE LAWS.

    (a) Review of Federal and State Laws.--
            (1) In general.--Not later than 90 days after the date of 
        the enactment of this Act, the Attorney General, the Secretary 
        of Health and Human Services, and the Secretary of Defense 
        acting jointly (in this section referred to as the ``designated 
        officials'') shall initiate a national review of Federal and 
        State laws, policies, regulations, and judicial precedents and 
        decisions regarding criminal and related civil commitment cases 
        involving people living with HIV/AIDS, including in regard to 
        the Uniform Code of Military Justice (UCMJ).
            (2) Consultation.--In carrying out the review under 
        paragraph (1), the designated officials shall seek to include 
        diverse participation from, and consultation with, each of the 
        following:
                    (A) Each State.
                    (B) State attorneys general (or their 
                representatives).
                    (C) State public health officials (or their 
                representatives).
                    (D) State judicial and court system officers, 
                including judges, district attorneys, prosecutors, 
                defense attorneys, law enforcement, and correctional 
                officers.
                    (E) Members of the United States Armed Forces, 
                including members of other Federal services subject to 
                the UCMJ.
                    (F) People living with HIV/AIDS, particularly those 
                who have been subject to HIV-related prosecution or who 
                are from minority communities whose members have been 
                disproportionately subject to HIV-specific arrests and 
                prosecution.
                    (G) Legal advocacy and HIV/AIDS service 
                organizations that work with people living with HIV/
                AIDS.
                    (H) Nongovernmental health organizations that work 
                on behalf of people living with HIV/AIDS, including 
                syringe services programs, LGBTQ-focused health 
                organizations, and organizations who serve people who 
                engage in sex work.
                    (I) Trade organizations or associations 
                representing persons or entities described in 
                subparagraphs (A) through (G).
            (3) Relation to other reviews.--In carrying out the review 
        under paragraph (1), the designated officials may utilize other 
        existing reviews of criminal and related civil commitment cases 
        involving people living with HIV, including any such review 
        conducted by any Federal or State agency or any public health, 
        legal advocacy, or trade organization or association if the 
        designated officials determines that such reviews were 
        conducted in accordance with the principles set forth in 
        section 3.
    (b) Report.--Not later than 180 days after initiating the review 
required by subsection (a), the Attorney General shall transmit to the 
Congress and make publicly available a report containing the results of 
the review, which includes the following:
            (1) For each State and for the UCMJ, a summary of the 
        relevant laws, policies, regulations, and judicial precedents 
        and decisions regarding criminal cases involving people living 
        with HIV, including the following:
                    (A) A determination of whether such laws, policies, 
                regulations, and judicial precedents and decisions 
                place any unique or additional burdens upon people 
                living with HIV.
                    (B) A determination of whether such laws, policies, 
                regulations, and judicial precedents and decisions 
                demonstrate a public health-oriented, evidence-based, 
                medically accurate, and contemporary understanding of--
                            (i) the multiple factors that lead to HIV 
                        transmission;
                            (ii) the relative risk of HIV transmission 
                        routes, including that a person that has an 
                        undetectable viral load cannot transmit the 
                        disease;
                            (iii) the current health implications of 
                        living with HIV, including data disaggregated 
                        by race and ethnicity;
                            (iv) the current status of providing 
                        protection to people who engage in survival sex 
                        work against whom condom possession has been 
                        used as evidence to intent to commit a crime;
                            (v) States that have the classification of 
                        mandatory sex offenders;
                            (vi) the associated benefits of treatment 
                        and support services for people living with 
                        HIV; and
                            (vii) the impact of punitive HIV-specific 
                        laws and policies on public health, on people 
                        living with or affected by HIV, and on their 
                        families and communities, including people who 
                        are in abusive, dependent, violent, and non-
                        consensual relationships and are unable to both 
                        negotiate the use of condoms and status 
                        disclosure.
                    (C) An analysis of the public health and legal 
                implications of such laws, policies, regulations, and 
                judicial precedents and decisions, including an 
                analysis of the consequences of having a similar penal 
                scheme applied to comparable situations involving other 
                communicable diseases.
                    (D) An analysis of the proportionality of 
                punishments imposed under HIV-specific laws, policies, 
                regulations, and judicial precedents, taking into 
                consideration penalties attached to violation of State 
                laws against similar degrees of endangerment or harm, 
                such as driving while intoxicated (DWI) or transmission 
                of other communicable diseases, or more serious harms, 
                such as vehicular manslaughter offenses.
            (2) An analysis of common elements shared between State 
        laws, policies, regulations, and judicial precedents.
            (3) A set of best practice recommendations directed to 
        State governments, including State attorneys general, public 
        health officials, and judicial officers, in order to ensure 
        that laws, policies, regulations, and judicial precedents 
        regarding people living with HIV are in accordance with the 
        principles set forth in section 3.
            (4) Recommendations for adjustments to the UCMJ, including 
        discontinuing the use of a service member's HIV diagnosis as 
        the basis for prosecution, enhanced penalties, or discharge 
        from military service, in order to ensure that laws, policies, 
        regulations, and judicial precedents regarding people living 
        with HIV are in accordance with the principles set forth in 
        section 3. Such recommendations should include any necessary 
        and appropriate changes to ``Orders to Follow Preventative 
        Medicine Requirements''.
    (c) Guidance.--Within 90 days of the release of the report required 
by subsection (b), the Attorney General and the Secretary of Health and 
Human Services, acting jointly, shall develop and publicly release 
updated guidance for States based on the set of best practice 
recommendations required by subsection (b)(3) in order to assist States 
dealing with criminal and related civil commitment cases regarding 
people living with HIV.
    (d) Monitoring and Evaluation System.--Within 60 days of the 
release of the guidance required by subsection (c), the Attorney 
General and the Secretary of Health and Human Services, acting jointly, 
shall establish an integrated monitoring and evaluation system which 
includes, where appropriate, objective and quantifiable performance 
goals and indicators to measure progress toward statewide 
implementation in each State of the best practice recommendations 
required in subsection (b)(3).
    (e) Modernization of Federal Laws, Policies, and Regulations.--
Within 90 days of the release of the report required by subsection (b), 
the designated officials shall develop and transmit to the President 
and the Congress, and make publicly available, such proposals as may be 
necessary to implement adjustments to Federal laws, policies, or 
regulations, including to the Uniform Code of Military Justice, based 
on the recommendations required by subsection (b)(4), either through 
Executive order or through changes to statutory law.

SEC. 5. RULE OF CONSTRUCTION.

    Nothing in this Act shall be construed to discourage the 
prosecution of individuals who intentionally transmit or attempt to 
transmit HIV to another individual.

SEC. 6. NO ADDITIONAL APPROPRIATIONS AUTHORIZED.

    This Act shall not be construed to increase the amount of 
appropriations that are authorized to be appropriated for any fiscal 
year.

SEC. 7. DEFINITIONS.

    For purposes of this Act:
            (1) HIV and hiv/aids.--The terms ``HIV'' and ``HIV/AIDS'' 
        have the meanings given to them in section 2689 of the Public 
        Health Service Act (42 U.S.C. 300ff-88).
            (2) State.--The term ``State'' includes the District of 
        Columbia, American Samoa, the Commonwealth of the Northern 
        Mariana Islands, Guam, Puerto Rico, and the United States 
        Virgin Islands.
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