[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6111 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 6111
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
December 1, 2021
Ms. Lee of California (for herself, Miss Gonzalez-Colon, Ms. Sherrill,
Mr. Kilmer, Mr. Price of North Carolina, Mrs. Watson Coleman, Mr.
Malinowski, Mr. Tonko, Mr. Khanna, Mrs. Carolyn B. Maloney of New York,
Mr. Panetta, Ms. Norton, Ms. Barragan, Ms. Williams of Georgia, Mr.
Cicilline, Mr. Rush, Mr. Takano, Mr. Quigley, Ms. Bass, Mr. Swalwell,
Mr. Pocan, Mr. Johnson of Georgia, Ms. Wasserman Schultz, Ms. Meng, Mr.
Carson, Mr. Lieu, Ms. Pressley, Ms. Jackson Lee, Mr. Danny K. Davis of
Illinois, and Mr. Butterfield) 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.
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 2022'' or the
``REPEAL HIV Discrimination Act of 2022''.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) At present, 31 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. 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.
(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 end in a plea arrangement or 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 effectively 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 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 in at least
six States for consensual sexual behavior. Their employability,
housing, and parenting options are jeopardized 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 ON FEDERAL LAW AND UPDATED REVIEW OF STATE LAWS.
(a) Review of Federal Law and Updated Review of 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, the Secretary of Defense, and the
Director of the White House Office of National AIDS Policy,
acting jointly (in this section referred to as the ``designated
officials'') shall initiate--
(A) a review of Federal 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; and
(B) an updated national review of State laws,
policies, regulations, and judicial precedents and
decisions regarding criminal and related civil
commitment cases involving people living with HIV/AIDS.
(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 Uniform Code of Military Justice.
(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 and community advocates experienced in the
application of the criminal law to HIV.
(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, an updated summary, and for the Uniform
Code of Military Justice, 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) Recommendations for adjustments to the Uniform Code of
Military Justice, 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''.
(4) A description of any personnel policies under which
members of the Armed Forces infected with HIV may be subject to
punishment under the Uniform Code of Military Justice based on
their HIV positive status, an assessment of whether such
policies reflect an evidence-based, medically accurate
understanding of how HIV is contracted, how HIV can be
transmitted to other individuals, and the risk of transmission,
and an explanation, based on surveys of appropriate officials
from each Armed Force, of why such policies continue to be
place and whether such policies should be changed.
(c) Guidance.--Not later than 90 days after the release of the
report required by subsection (b), the Director of the White House
Office of National AIDS Policy, shall develop and publicly release
updated guidance for States based on the updated review conducted under
subsection (a)(1)(B), in order to assist States dealing with criminal
and related civil commitment cases regarding people living with HIV. In
preparing the guidance under this subsection, the Director shall
consult in accordance with subsection (a)(2).
(d) Modernization of Federal Laws, Policies, and Regulations.--Not
later than 180 days after the release of the guidance required by
subsection (c), 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, that reflect the reports and guidance required under this Act
either through Executive order or through changes to statutory law.
SEC. 5. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to prohibit the prosecution
of individuals who act with the specific intent to do harm to another
person by transmitting HIV through means likely to result in actual
transmission, and who in fact transmit HIV.
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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