Pennsylvania

Pennsylvania has a range of HIV-specific and general disease laws which are used to criminalise people living with HIV for perceived ‘exposure’. In addition, general criminal laws have been used to prosecute people living with HIV for non-disclosure of status prior to sex.

The only HIV-specific criminal provision in place relates to people living with HIV who engage in sex work. The law makes it an offence to be involved in a ‘house of prostitution’, ‘engage in sexual activity as a business’, or to ‘loiter in a public place for the purpose of being hired to engage in sexual activity’. The law explicitly makes it a felony to commit this offence while living with HIV, compared with a misdemeanour for people not living with HIV. Similarly, it is a felony to ‘promote prostitution’ if the person being ‘promoted’ is living with HIV, an offence which is a misdemeanour in most other circumstances, while paying for the services of a sex worker is also a third-degree felony when someone is living with HIV. The lack of definition of ‘sexual activity’ has led to people being prosecuted for acts which carry little to no risk of transmission, while disclosure and the use of condoms are not considered. In March 2024, State Senator Vincent Hughes and Representatives Benjamin Waxman and Malcolm Kenyatta introduced a bill that would repeal this provision.

In November 2022, Governor Wolf signed into law a new bill which creates an additional felony offence against people living with communicable diseases, including HIV. HB 103 added a new section to the offence of ‘assault of a law enforcement officer’ which criminalises people who knowingly or intentionally cause, or attempt to cause, a law enforcement officer to come into contact with blood, semen, saliva, urine, or faeces by throwing, tossing, spitting, or expelling that fluid. This offence is ordinarily a third degree felony but the 2022 reform introduced an enhancement to second degree level (up to ten years’ imprisonment and a fine) if the person knew, or had reason to know, that the fluid contained a reportable communicable disease (which includes HIV). Although these methods of fluid ‘exposure’ include some which are not normally considered HIV transmission routes, the law does require that the disease in question be communicable by the ‘exposure’ method used, or attempted to be used, in order for someone to be found guilty, however it is not clear what threshold of likelihood is required to be proved, and whether this is assessed in general terms or specific to the circumstances of the case, including any transmission mitigations, such as viral suppression, present.

Another law criminalises ‘exposure’ to communicable diseases including HIV in incarceration. This provision, titled ‘assault by prisoner’, makes it an offence for an imprisoned person who is aware that they are living with a communicable disease to intentionally commit an ‘assault with a deadly weapon or instrument’ or cause ‘serious bodily injury’. This explicitly includes causing another to come into contact with bodily fluids by ‘throwing, tossing, spitting or expelling’ such fluid, knowing that the fluid was carrying a communicable disease. This offence is a second-degree felony punishable by an additional consecutive prison sentence of up to ten years, or for those already sentenced to life imprisonment or the death penalty, the equivalent penalty to second-degree murder. HB 103, passed in November 2022, added the same stipulation as the above offence to these offences, that the disease in question must be communicable by the method of ‘exposure’ used.

A number of general criminal provisions have also been used to prosecute people living with HIV outside of prisons and sex work. Non-disclosure of status has been criminalised through the leading case of Commonwealth v. Cordoba, in which a person living with HIV was charged with ‘reckless endangerment’ for having oral sex without disclosing his status. The Superior Court found that the non-disclosure rendered the sex non-consensual and amounted to reckless endangerment, which requires placing another at danger of death or serious bodily injury. The court reasoned that only a possibility of harm is required, regardless of likelihood, and it was irrelevant that in this case there was virtually no risk of transmission from the conduct.

Non-disclosure has also led to other charges. In a 1999 case, a man was charged with third-degree murder, attempted homicide and aggravated assault for having sex with five women without disclosing his status. All of the women later tested positive, but the man died before the case went to trial. People have also been convicted for aggravated assault for bleeding on, spitting, or biting others.

In another case, a person living with HIV was convicted of ‘communicating terrorist threats’ after he scratched a parole officer and referred to open cuts on his own hand. The court found that the likelihood of transmission was irrelevant, and all was required was the causing of terror itself.

In addition to these criminal charges, a number of provisions within the Pennsylvania health and administrative codes allow authorities to order medical examinations and quarantine for those suspected of living with communicable diseases.

It is difficult to establish how many cases there have been in Pennsylvania due to the use of general criminal provisions, however we are aware of at least 19 reported prosecutions.

As well as the successful move to strengthen the laws in 2022, there have been other attempts in recent years including two bills, 305 and 306, which were introduced in 2017 which sought to toughen laws concerning HIV in prisons, including strengthening ‘exposure’ laws and allowing disclosure of inmates’ HIV status to staff. The bills ultimately failed. Advocates have also sought to fight HIV criminalisation, raising awareness through an initiative in 2021.

For a detailed analysis of HIV criminalisation in Pennsylvania, 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.