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Idaho


For information on getting involved in HIV criminalization reform advocacy in Idaho, please email info@seroproject.com.


Data from the GNP+ Global Criminalisation Scan

Number of prosecutions54
Applicable laws

Idaho Code § 39-608

Felony: transfer of bodily fluids which may contain HIV

Any person who exposes another in any manner with the intent to infect or, knowing that he or she has HIV, transfers or attempts to transfer any of his or her body fluid, tissue or organs to another person is guilty of a felony. It is an affirmative defense that the sexual activity took place between consenting adults after full disclosure by the accused of the risk of HIV transmission. It is also an affirmative defense that the transfer of body fluid, tissue or organs occurred after advice from a licensed physician that the accused was noninfectious. (“Body fluid” means semen, blood, saliva, vaginal secretion, breast milk, and urine. “Transfer” means engaging in sexual activity by genital-genital contact, oral-genital contact, anal-genital contact; or permitting the use of an unsterilized hypodermic syringe, needle, or similar device; or giving blood, semen, body tissue, or organs for purposes of transfer to another person.)

Sentences and Fines: Up to 15 years in prison and/or up to a $5,000 fine.

Idaho Code § 39-601

Misdemeanor: knowingly exposing another to a venereal disease

It is unlawful for anyone infected with HIV to knowingly expose another person to HIV infection.

Discussion

Idaho's HIV-specific criminal statute goes beyond the usual HIV disclosure statutes: informing a partner only of one’s HIV-positive status, without disclosing the risk of transmission, is not a sufficient defense on the face of this statute. It is also not a defense if condoms, or other protection, were used. However, it is a defense if the accused can prove that a licensed physician informed them that they were “noninfectious” (could not transmit HIV to others). This could occur if a person’s viral load was undetectable.

Also unusual is the fact that Idaho’s HIV-specific criminal statute specifically targets intravenous drug users and others who share their needles and syringes.

According to information collected by SERO, charges have been laid using Idaho's HIV-specific criminal statute 54 times since it was enacted in 1998. (Source: Idaho statewide trial court automated records system)

Between June 2008 and October 2011, four cases were reported in the media. All involved otherwise consensual sex, and no complainant claimed to have become HIV-positive as a result.

Given that there are an estimated 1,250 people living with (diagnosed) HIV in Idaho (Source: Idaho Dept of Health and Welfare), prosecutions per capita of PLHIV are an estimated 43.2 per 1000, one of the highest in the world for any single jurisdiction.

Further reading

Positive Justice Project. Ending Defending Against HIV Criminalization, A Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011).

Recent cases can be found at: Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012.