NEW JERSEY – Acting Attorney General Andrew J. Bruck Wednesday issued guidance to prosecutors statewide to prevent inappropriate enforcement of a state law that makes it a crime for an individual living with HIV to engage in certain sexual activity without the informed consent of their partner.
As the guidance explains, advancements in medical treatment over the past several decades have transformed HIV/AIDS from a devastating epidemic to a manageable, chronic disease. In 1997, when the state law in question was enacted, HIV was still thought to be a death sentence. Now, according to the Centers for Disease Control and Prevention (CDC), people living with HIV who adhere to a medically appropriate treatment plan involving antiretroviral therapy can reduce their viral loads to such a low level that the virus is undetectable in testing—and virtually impossible to transmit through sexual activity.
The guidance notes that, even as the risk of infection and mortality has decreased, the stigma associated with the virus remains high and people living with HIV continue to face discrimination. This discourages people from learning their HIV status and disclosing it to medical providers and sexual partners. A number of professional organizations—including the American Medical Association and American Psychological Association—have criticized laws that criminalize sexual activity by those living with HIV, and the U.S. Department of Justice’s Civil Rights Division has urged states to repeal or reform such laws. Legislative action would be required in order to repeal or modify New Jersey’s law.
“New Jersey’s 24-year-old law criminalizing sexual activity by those living with HIV fails to recognize current realities and further stigmatizes the disease,” Bruck said. “This guidance is designed to ensure that people are not prosecuted unjustly and that we do not undermine public-health strategies aimed at encouraging testing, treatment, and prevention.”
The law, N.J.S.A. 2C:34-5(b), makes it a third-degree crime for a person living with HIV to engage in an “act of sexual penetration” without the informed consent of their partner. While noting that relatively few people are charged under the law, the guidance issued today provides specific direction to prosecutors regarding how to exercise their “significant discretion” in enforcing the law.
The guidance directs prosecutors to consider the following factors in deciding whether to charge an individual under the law:
- Whether the individual forced or coerced their partner to engage in sexual activity;
- Whether the individual engaged in sexual activity for the purpose of transmitting HIV to their partner; and/or
- Whether the individual was adhering to a medically appropriate HIV treatment plan at the time of the sexual activity.
The guidance states that it is “virtually impossible” to imagine a scenario where it would be appropriate to charge an individual if that person’s HIV viral load was undetectable at the time of the sexual activity and no aggravating factors existed. Prosecutors considering criminal charges in such circumstances must consult with the Director of the Division of Criminal Justice before proceeding.