Maryland

Maryland law contains one HIV-specific provision criminalising perceived ‘exposure’, but general criminal laws have also been used to prosecute people living with HIV.

The HIV-specific provision ostensibly criminalises the ‘knowing transfer of HIV to another’, or attempts to do so, with a penalty of up to three years’ imprisonment and a fine. Although the provision is drafted in terms of transmission, this is not a required element of the offence as the inclusion of the attempt clause means only perceived ‘exposure’ is required. The provision does not define what kind of conduct is covered, and cases ranging from sexual conduct to biting have been prosecuted, suggesting that any type of ‘exposure’ is covered regardless of risk of transmission. There is also no defence of condom use or other protections. In January 2024, a bill was introduced to the state House which would repeal this provision. It is currently being considered by the Maryland legislature.

We have received only a handful of reports of prosecutions under this HIV-specific provision, including a 2019 case in which a man was sentenced to 30 years’ imprisonment, with all but nine years suspended, after having sex with at least three women. However, research published by the Williams Institute in January 2024 reveals this to be a substantial underreporting of enforcement of the HIV provision in Maryland. The research found at least 104 prosecutions (148 separate charges) under this law from the first prosecution in March 2000 to 2020. Case numbers have increased over time, with a more than 50% increase from the first decade of enforcement to the second. Where case outcomes are available, only 10% resulted in conviction on an HIV-related charge, however media reports indicated that sometimes plea bargains are reached in which such charges are dropped in return for a guilty plea on general criminal laws. Both men (86% of cases to 66% of people living with HIV) and black people (82% to 71%) were overrepresented in prosecution data, with black men (68% to 44%) in particular most disproportionately targeted under the law.

The Williams Institute data shows that criminal laws, including reckless endangerment and assault, have also frequently been used to prosecute HIV ‘exposure’ cases, most often alongside HIV-charges but on some occasions without. Charges under the reckless endangerment offence require a substantial risk of death or serious injury. In 2015, a man pleaded guilty to two counts of reckless endangerment for having sex with two women after making an agreement with prosecutors in which HIV-specific charges would be dropped. This was despite the fact that he had an undetectable viral load and could not transmit HIV. He was sentenced to 18 months’ imprisonment and was also ordered not to have unprotected sex, but was found dead in his cell in 2017. In 1996 a case involving three counts of rape, the Maryland Court of Appeals stated that a man living with with HIV could not be convicted of attempted murder, as charged, as there was not sufficient evidence that he intended to transmit HIV. Along with rape, the man was convicted of reckless endangerment.

Charges under other offences have been brought on the basis of HIV status for conduct which carries virtually no risk of transmission, such as a 2010 charge of second-degree assault for spitting which resulted in a five-year prison sentence and a 2016 charge of attempted murder for biting. It is not clear whether this latter case resulted in conviction, but previous case law indicates that an intention to transmit must be proven, rather than mere recklessness (see CHLP report below).

Maryland law also contains a provision criminalising people with STIs that ‘endanger public health’ who fail to take ‘proper precautions’ against ‘exposure’ in public places, or transfer articles that have been ‘exposed’ to the STI without disinfection. The penalty available is up to one year imprisonment and a fine. The specific STIs included are not stated, so it is unclear whether this includes HIV.

There does not appear to have been significant organised attempts to reform the law in Maryland, perhaps due to the relatively limited cases, scope of the law, and available sentences. An attempt to repeal the HIV-specific provision law in 2013 was withdrawn after advocates warned that it could do more harm than good. Another proposed repeal was also withdrawn in 2022, while a bill proposed in 2023 was passed in the House but was not voted on in the Senate before the end of the legislative session.

For a detailed analysis of HIV criminalisation in Maryland, 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.