US: Enforcement of HIV Criminalization in Indiana: Body Fluid/Waste Enhancement Laws
Using data obtained from the Indiana Office of Court Services, online court-tracking tools, and Probable Cause Affidavits, this study examines the enforcement of Indiana’s HIV-related body fluid laws.
Overview
The Williams Institute examined arrest and court records from Indiana regarding people living with HIV (PLWH) who were prosecuted for an alleged HIV-related body fluid exposure crime. Indiana has six laws criminalizing PLWH spanning both the criminal and health codes. This report—one in a series examining HIV criminalization in Indiana—analyzes the enforcement of HIV-related body fluid/ waste penalty enhancements between 2012 and 2023. Almost all charges under these two statutes involved bodily fluids (such as saliva and urine) and conduct (such as spitting and coughing) that do not transmit HIV. None of the charges involved an allegation that HIV was actually transmitted.
- IC § 35-42-2-1(c2)(f)(h), Battery by Bodily Fluid or Waste, creates penalty enhancement when a person, knowingly or intentionally, “in a rude, insolent or angry manner places any bodily fluid or waste on another person” and the “person knew or recklessly failed to know that the fluid or bodily waste was infected” with HIV.
- The base misdemeanor becomes a Felony 6 if the person accused is living with HIV. If the victim is a “public safety official,” the base Felony 6 penalty increases to a Felony 5.
- IC § 35-45-16-2(c-f), Malicious Mischief by Body Fluid or Waste, creates a penalty enhancement when a person causes another involuntarily to come into contact with or ingest a body fluid or waste and “the person knew or recklessly failed to know that the body fluid or fecal waste is infected with” HIV.
- The base misdemeanor becomes a Felony 6 if the person accused is living with HIV. If transmission occurs, it further increases to a Felony 4.
In Indiana, a Felony 6 conviction can result in incarceration for up to 2.5 years. A Felony 5 conviction can result in incarceration for up to 6 years, and a Felony 4 conviction can result in incarceration for up to 12 years.
Key Findings
- We identified 42 unique people across 51 unique cases who were charged under the two body fluid/waste HIV penalty enhancements between 2012 and 2023. In each battery case, the PLWH was charged with a penalty enhancement for behaviors that pose no transmission risk.
- No cases under either law involved allegations of or charges for HIV transmission.
Battery by Bodily Fluid or Waste
- In all, there were 41 cases involving 38 PLWH charged with an HIV-related battery by bodily fluid or waste crime. Of those, about half (49%) involved the public safety official HIV penalty enhancement.
- None of the cases reviewed alleged actual HIV transmission or conduct that can transmit HIV.
- In all, 82% of the alleged acts solely involved exposure to saliva, mainly through spitting. Saliva exposure is not an HIV transmission route. Urine exposure occurred in 3% of the incidents. Urine exposure is not an HIV transmission route.
- Only 15% of cases involved exposure to blood. However, HIV is not transmitted by blood via the acts described in the cases reviewed (for example, spitting saliva mixed with blood at someone).
- Enforcement increased over time, from 2.7 cases per year between 2012 and 2018 to 4.4 per year between 2019 and 2023.
- About four in five (81%) of people charged were men.
- White people were 64% of people charged, although they accounted for only 45% of the state’s population of PLWH. Likewise, white men were overrepresented, accounting for about half (51%) of all people accused of an HIV-related battery by bodily fluid crime, although they made up only 38% of the state’s population of PLWH.
- Cases were highly concentrated in 17 of Indiana’s 92 counties, with about a third (31%) of cases occurring in Marion County—home to Indianapolis, the state capital and largest city.
- Most alleged crimes took place in private residences (29%), public spaces (27%), hospitals (24%), and jails or prisons (15%).
- In more than one in five (22%) cases, victims were advised to undergo HIV testing or post-exposure treatment even though none of the cases analyzed in this report alleged conduct that can transmit HIV.
- Many cases indicated a period of heightened tension prior to alleged exposure:
- Just over half (54%) of cases reviewed involved officer use of force prior to the alleged exposure incident.
- Just under half (46%) of the cases described the person accused as apparently experiencing acute mental distress, intoxication, or both.
- Nearly all (93%) people accused were found indigent by the courts and assigned a public defender.
- Among the cases for which we have final outcomes, about four in ten (42%) had all charges dismissed.
- In all, 17 cases led to a conviction on at least one HIV-related battery by bodily fluid charge; of those, 41% also included a public safety official enhancement. All convictions came from plea agreements. None of these cases proceeded to trial.
- HIV-related convictions disproportionately resulted in incarceration in the Indiana Department of Corrections (72%), compared to just 32% for other non-HIV-related offenses connected to the analyzed cases.
- HIV-related offenses resulted in significantly longer sentences, averaging 2.3 years, compared to 1.2 years for other offenses. Sentences for battery by bodily fluid/waste HIV offenses with public safety official enhancements averaged 3.1 years, more than double the 1.5-year average for those without enhancements.
Malicious Mischief
- Only four people, involving 10 cases, were charged under malicious mischief enhancement. Many (eight in total) of these may have been inappropriate applications of the law—they involved conduct not intended to be covered by the law.
- Two of the four people (eight cases) involved a person living with HIV allegedly failing to disclose their HIV status to an intimate partner. All eight resulted in convictions. The other two cases involved a person throwing a towel with urine and a person coughing; both were dismissed.
- None of these cases involved charges for or allegations of HIV transmission.
Indiana’s HIV-related body fluid/waste exposure laws continue to punish PLWH more severely. None of the cases reviewed alleged actual HIV transmission. All the battery by bodily fluid cases describe conduct that does not transmit HIV, such as spitting or biting. The handful of malicious mischief cases that alleged conduct capable of HIV transmission appeared to be a misapplication of the law. None of these alleged HIV transmission either. Indeed, neither of Indiana’s HIV-related bodily fluid exposure laws contemplate behaviors that can normally transmit HIV. Rather, the laws appear to single PLWH out for harsher punishment merely because of their HIV status.
