abstract. Over thirty states maintain criminal laws that expressly target people living with HIV. Thousands of people are prosecuted under these statutes, exposing them to decades of incarceration, thousands of dollars in fines, and state-sanctioned stigma. This broad pattern of discrimination based solely on HIV status—what this Note terms serodiscrimination—is not supported by scientific evidence nor public-health rationales. This Note argues that many states’ HIV-specific criminal laws violate the Americans with Disabilities Act’s ban on discrimination by public entities. While previous constitutional challenges to these laws have fallen short, litigation under federal disability law offers a new pathway for reform.

author. Yale Law School, J.D. 2020. For thoughtful comments and conversations, I am deeply grateful to Joe Fischel, Christine Jolls, Yuvraj Joshi, John Knight, Jamelia Morgan, Andrew Pendleton, Scott Schoettes, Scott Stern, Ryan Thoreson, Jonah Wacholder, and workshop participants at Yale’s Arthur Liman Center for Public Interest Law. I also thank the staff of the Yale Law Journal, especially Timur Akman-Duffy, Joshua Feinzig, and Alexander Nabavi-Noori, for their keen editorial insight and support.

Introduction

In June 2008, Nick Rhoades had a consensual sexual encounter in Iowa.1 He and his partner had condomless oral sex and anal sex with a condom,2 activities that carry little to no risk of transmitting the human immunodeficiency virus (HIV) from one person to another.3 Though Rhoades has HIV, his viral load was undetectable4 and he was thus unable to transmit the virus even if engaged in a potentially high-risk activity.5 Despite all of these factors, Rhoades was charged and convicted under Iowa’s HIV-specific criminal exposure statute after his partner discovered Rhoades’s HIV status and contacted the police.6 Under the statute then in force, Rhoades was sentenced to twenty-five years in prison and required to register as a sex offender.7

In January 2019, Drew Schieber spat on two healthcare workers at an Indiana hospital.8 For most people in Indiana, spitting on another person is a misdemeanor, punishable with up to 180 days in prison and a maximum fine of $1,000.9 But because Schieber has HIV,10 a different and harsher state statute applied. Under that law, spitting on another person exposed him to a felony conviction, two-and-a-half years in prison, and a $10,000 fine.11 Solely due to his HIV status, he faced a sentence five times as long and a fine ten times as high—despite the fact that spitting cannot transfer HIV.12

Over thirty states across the country enforce similar criminal laws, imposing steep penalties on people living with HIV when they perform certain actions. These laws apply to the more than one million people with HIV living in the United States today13 and result in thousands of state charges under HIV-specific laws.14 The statutes sweep broadly, proscribing even conduct that carries no chance of transmitting the virus to another person.15 This pattern of discrimination due to HIV status—what this Note terms serodiscrimination—subjects people to arrests, fines, court fees, and incarceration based only on that status.16 The statutes also carry expressive harms, singling out people living with HIV for state-sanctioned stigma.

The federal Americans with Disabilities Act (ADA), enacted to combat public and private discrimination based on disability status, provides a pathway to correct this criminalized regime. This Note offers a novel argument that the ADA’s reach extends to state criminal laws that discriminate on the basis of disability, including most HIV-criminalization statutes, and precludes their enforcement. While this litigation strategy has not previously been implemented to challenge such statutes, existing ADA case law from the Supreme Court and federal courts of appeals provides a strong doctrinal foundation for its approach.

Part I describes the problem of state criminal laws that discriminate against people with disabilities. HIV-criminalization statutes reflect a long history of misinformation and stereotypes about HIV and acquired immunodeficiency syndrome (AIDS) in the United States. Dozens of states enacted HIV-specific criminal laws between the late 1980s and early 2000s. As written, they proscribe a wide range of conduct, including many forms of interaction that carry no risk of viral transmission. But despite past litigation efforts and calls from advocates for reform, these discriminatory criminal laws remain on the books in more than thirty states and continue to be enforced today.

Part II offers a solution. It develops a novel theory for litigating challenges to state HIV-criminalization statutes under federal antidiscrimination law. The ADA bans public entities from discriminating on the basis of disability, including an individual’s HIV status. Most state HIV-criminalization statutes violate Title II of the ADA and are therefore unenforceable. While there are exceptions to public entities’ liability when concerns about third-party health and safety exist, most HIV-criminalization statutes do not provide the individualized inquiry and risk assessment required to trigger that exception, if it were deemed applicable. As a result, these serodiscriminatory laws are straightforward violations of Title II, criminalizing a broad range of behaviors (across various levels of risk) based on an individual’s disability status.

Finally, Part III discusses the merits of implementing this litigation strategy as part of broader efforts to challenge and reform existing HIV-criminalization statutes. After considering the prudence of the proposed legal arguments, the consequences that attach to possible litigation outcomes, and the interaction between litigation and legislative advocacy, the Note concludes that bringing ADA claims against state HIV-criminalization statutes offers a viable untapped pathway for reform.