Overview
North Dakota criminalises people living with HIV who transfer their bodily fluids to others. We are aware of at least six cases of enforcement in the state.
Unusually, the provision is formulated in terms of transferring bodily fluids, making it an offence for anyone knowingly living with HIV to ‘wilfully’ transfer sperm, blood, or vaginal fluids to another through vaginal, anal, or oral sex, or through the use of non-sterile needles or syringes. Neither intent to transmit nor actual transmission are required, although there is an affirmative defence if both the sexual activity was preceded by disclosure and an “appropriate prophylactic device”, such as a condom, was used. This provision is a class A felony, punishable with up to 20 years’ imprisonment and/or a fine. In 2021, an attempt to modernise the HIV law in North Dakota by reducing the penalty imposed to a fine was widely rejected by lawmakers.
The first known enforcements of this law came in 2006, when two prosecutions took place. All subsequent cases relate to sexual activity without disclosure of status. In a 2016 case, a man living with HIV was charged after allegedly having oral sex, despite the fact that the risk of transmission would be negligible to zero depending on several key factors including whether he received or performed oral sex and whether or not he was on effective antiretroviral therapy.
In January 2023 a Bill was introduced which would repeal this law in full.
Health laws in North Dakota also allow officials to compel people suspected of having an STI, which includes HIV, to undergo examination and treatment, if necessary with detention. Additionally, people convicted of any crime for which a prison sentence of more than 15 days is imposed, must undergo testing for STIs, and if positive, must comply with treatment. Failure to abide by these health laws can result in a fine.
For a detailed analysis of HIV criminalisation in North Dakota, 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.
Laws
North Dakota Code § 12.1-20-17
Transfer of body fluid that may contain the human immunodeficiency virus
1. As used in this section, unless the context otherwise requires:
a. “Body fluid” means semen, irrespective of the presence of spermatozoa; blood; or vaginal secretion.
b. “Transfer” means to engage in sexual activity by genital-genital contact, oral-genital contact, or anal-genital contact, or to permit the reuse of a hypodermic syringe, needle, or similar device without sterilization.
2. A person who, knowing that that person is or has been afflicted with acquired immune deficiency syndrome, afflicted with acquired immune deficiency syndrome related complexes, or infected with the human immunodeficiency virus, willfully transfers any of that person’s body fluid to another person is guilty of a class A felony.
3. It is an affirmative defense to a prosecution under this section that if the transfer was by sexual activity, the sexual activity took place between consenting adults after full disclosure of the risk of such activity and with the use of an appropriate prophylactic device.
Further resources
Not all laws used to prosecute people living with HIV in this state are included on this page. For a comprehensive overview and analysis of HIV-related criminal and similar laws and policies, visit The Center for HIV Law and Policy
Acknowledgements
HIV Justice Network's Positive Destinations
Visit the North Dakota page on Positive Destinations for information on regulations that restrict entry, stay, and residency based on HIV-positive status, as well as access to HIV treatment for non-nationals.
