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Being Charged with Criminal Transmission of HIV

Posted on in Criminal Law
Being Charged with Criminal Transmission of HIVSexual assault cases, such as rape, hinge upon proving whether there was consent between both parties. Some consensual sex acts are also criminalized. Illinois law makes it illegal for someone to knowingly transmit HIV to an unaware person. The victim does not need to be infected in order for charges to be brought. Conviction on a criminal transmission of HIV charge is a class 2 felony, which can result in three to seven years in prison and fines of as much as $25,000. There have been situations where offenders with HIV have purposely or recklessly infected victims by having unprotected sex. However, spite can motivate some former lovers to make the criminal accusation.

Defining Criminal Acts

Since first adopting the criminal transmission of HIV law in 1989, Illinois has made several changes that narrow the scope of the offense. Not all sexual acts pose a reasonable risk of transmitting HIV. According to the law, there are three ways someone can criminally transmit HIV:

  • Through vaginal or anal intercourse without the use of a condom;
  • Providing bodily fluids or organs for the purpose of being transfused or transplanted into another person; and
  • Sharing drug paraphernalia such as injection needles.

HIV carriers can no longer be convicted for lower-risk sexual activities, such as kissing, biting and oral sex. Taking protective measures, such as using a condom, shows that the defendant was trying to prevent the transfer of bodily fluids.

Prior Knowledge

To convict someone on a criminal transmission of HIV charge, the prosecution must prove that the defendant intentionally committed the offense. This requires showing that:

  • The offender knew of his or her HIV status; and
  • The victim was unaware of the HIV risk before consenting to an act that involved the sharing of bodily fluids.

Prosecutors are allowed to obtain the defendant’s medical records in order to show his or her prior knowledge of having HIV. To protect the defendant’s privacy, a judge must review and approve the records before giving them to the prosecution. It can be more difficult to determine whether the alleged victim knew of the defendant’s HIV status, particularly in cases involving sexual activity. As with rape charges, the case may rely upon which party appears more trustworthy during testimony.

HIV Criminalization

Civil liberties and HIV patient advocates have long lobbied to reduce or eliminate Illinois’ criminal transmission of HIV law. Misunderstanding of HIV and AIDS lead to laws that were based on ignorance and fear. A DuPage County criminal defense lawyer with Stephen A. Brundage, Attorney at Law, can defend you against unjust accusations of sex-related crimes. To schedule an appointment, call 630-260-9647.


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