Florida

Florida has a number of laws, both HIV-specific and general, that are actively used to prosecute people living with HIV. There have been more than 600 documented HIV-related cases in the state under these laws, making Florida one of the worst hotspots for HIV criminalisation not only in the United States, but globally.

Florida maintains a public health law criminalising non-disclosure of STI status, and separately HIV status, prior to sex. The offence requires the person to be aware of their STI and/or HIV status, to be informed of the risks of transmission through sex, and to go on to have sex with another person. There is a defence if the sexual partner is aware of their STI and/or HIV status and has consented to sex regardless, but there is no consideration of protective measures to avoid transmission, such as use of condoms or low viral load. Neither intent nor actual transmission are required for this offence. Although Florida law originally restricted the meaning of ‘sexual intercourse’ to penile-vaginal sex, appeal courts have been split regarding whether the law can also prosecute acts of anal sex. However, oral sex is not criminalised by this provision.

It is also an offence for people living with HIV to engage in or ‘procure’ sex work in Florida. The law, as with non-disclosure, criminalises both HIV and STIs generally, but separates them out under the provision. It again requires that the person be aware of their status, be informed of the possibility of transmission through sexual activity, and then commit or offer to commit ‘prostitution’, or procure another for ‘prostitution’ by engaging in sex ‘likely to transmit’ STIs and/or HIV. Although framed in this way, the provision is used to criminalise acts which carry little to no risk of transmission, including oral sex. As with the non-disclosure offence, neither intent or actual transmission are required, while neither condom use, low viral load, nor disclosure are defences.

Furthermore, Florida criminalises the donation of blood, organs or other tissues by people living with HIV who are aware of their status and who have been informed that the donation of bodily substances may result in transmission. Again, this offence does not require an intention to transmit or for transmission to occur (see our report, Bad Blood, for a global analysis of the criminalisation of blood donations).

Each of the HIV-related non-disclosure, sex work, and donation offences are third-degree felonies, carrying a penalty of imprisonment for up to five years’ and a fine. The non-disclosure offence can be increased to a first-degree felony for multiple failures to disclose, raising the penalty to thirty years’ imprisonment with a fine.

In addition to these HIV-specific laws, the general criminal law has also been used to prosecute perceived HIV ‘exposure’ in at least one case. This 2009 case involved a man living with HIV being charged with attempted murder for allegedly biting a police officer after shouting that he had HIV and threatening to kill him. He was eventually convicted of aggravated battery for use of a ‘deadly weapon’ – in this case his HIV-positive saliva – and sentenced to 15 years’ imprisonment, despite there being an infinitesimally low risk of transmission from biting.

People convicted of certain offences, such as sexual or physical assaults, where a transfer of bodily fluids was involved are required to undergo HIV testing. Anyone who tests positive and then commits another similar offence can be charged with an additional felony, ‘criminal transmission of HIV’, which carries a sentence of up to five years’ imprisonment and a fine (on top of the base charge penalty). Intent and, despite the erroneous title, transmission are again not required, however it is a defence if the other person was aware of their status and consented to the act. The Center for HIV Law and Policy previously reported that this offence had only been applied in the prosecution of sex workers, but two cases in 2022 involved people living with HIV being charged with ‘criminal transmission of HIV’ for spitting and biting. In the first in September 2022, a woman living with HIV was charged with five counts of criminal transmission of HIV for allegedly spitting on paramedics. In a similar case in October 2022, a man living with HIV was charged with two counts of criminal transmission of HIV for allegedly spitting at and biting paramedics and police officers. Similarly, sentence enhancements have in the past been imposed on people living with HIV for offences such as battery where deemed relevant to the crime (for instance, if it involved biting), though it appears that this has not happened since the 1980s and 90s.

Finally, the Florida health authorities are empowered to impose quarantine and isolation on people living with STIs, including HIV, if deemed necessary.

A 2018 analysis of HIV prosecutions in Florida highlighted the scale of criminalisation in the state; between 1986 and 2017, 614 people were arrested for 874 HIV-related incidents. As with most states, disparities in the enforcement of these laws against different communities were clear. 43% of those arrested were Black, a significant overrepresentation of the community (though the analysis suggests Latino/a people may have negligently been included in this data by law enforcement). Over half of those arrested (56%) were women, while only 27% of those living with HIV in the state were women, which is partly attributable to the high enforcement of sex work offences (60% of total arrests). 35% of arrests resulted in convictions for HIV offences, with Black women being significantly more likely to be convicted (in 60% of cases) for sex work offences, and Black men more likely to be arrested for non-disclosure offences (30%) than other groups. The report did not note a significant difference in the conviction rate for HIV offences and offences related to other STIs.

Despite such significant levels of HIV criminalisation in the state there has so far been little change to the law, despite unsuccessful attempts to bring about legislative reform supported by local coalitions such as Florida HIV Justice Coalition. In 2017, a bill was introduced to the Senate which would have ‘modernised’ Florida law to limit HIV criminalisation to only intentional transmission. However, the bill failed to be adopted. Another bill in 2020 attempted to reduce the charge for non-disclosure to a misdemeanour, but again ‘died’ later that year.

For a detailed analysis of HIV criminalisation in Florida, as well as all other US states, see the Center for HIV Law and Policy report, HIV Criminalisation in the United States: a Sourcebook on State and Federal HIV Criminal Law and Practice.