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Illinois


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


Data from the GNP+ Global Criminalisation Scan

Number of prosecutions100
Applicable laws

720 Ill. Comp. Stat. § 5/12-16.2

A person who knows that he or she is infected with HIV commits criminal transmission of HIV if he or she (1) engages in contact with another person involving the exposure of the body of one person to a bodily fluid of another in a manner that could result in HIV transmission; (2) transfers, donates or provides his or her blood, tissue, semen, organs or other potentially infectious body fluids for administration (e.g., transfusion) to another person, or (3) in any way transfers to another any nonsterile IV or intramuscular drug paraphernalia. The actual transmission of HIV is not a required element of this crime. It is an affirmative defense that the person exposed knew the infected person was infected with HIV, knew the action could result in infection, and consented with that knowledge.

Violation of this statute is a Class 2 felony. The sentence for attempt to commit a Class 2 felony is the sentence for a Class 3 felony.

Penalties

For a Class 2 felony, not less than 3 years in prison and not more than 7 years.

For a Class 3 felony, not less than 2 years in prison and not more than 5 years.

A felony offender may be sentenced to pay a fine not to exceed, for each offense, $25,000 or the amount specified in the offense, whichever is greater.

Discussion

Illinois’ definition of “bodily fluids” for the purpose of its HIV exposure law does not limit its definition only to fluids known to transmit HIV. Even though the CDC has long maintained that saliva, tears, and sweat do not expose others to a risk of HIV transmission, these bodily fluids are not excluded from consideration under Illinois’ criminal transmission law. This means that spitting, biting, scratching, and other activities pose, at best, only theoretical risks of HIV transmission may be subject to prosecution. There have been numerous prosecutions in Illinois for criminal transmission of HIV stemming from an HIV-positive person biting someone, despite the fact that the CDC has concluded that there exists only a “remote” possibility that HIV could be transmitted through a bite and such transmission would have to involve various aggravating factors including “severe trauma, extensive tissue damage, and the presence of blood.”

In Illinois, as in many states, it is not a defense if HIV transmission was impossible under the circumstances. Even a verbal offer to engage in “intimate contact” may result in prosecution despite the fact that the completed act would not have had any risk of HIV exposure (i.e.: a hand job, fingering, or performing oral sex).

Despite its flawed language and broad scope, the Illinois HIV criminal transmission law has survived multiple legal challenges arguing that its language is unconstitutionally vague. (See Key Cases, above).

Excerpted from: 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).

According to information collected by SERO, charges have been laid using Illinois's HIV-specific criminal statute 100 times since it was enacted in 1989. (Source: Illinois Criminal Justice Information Authority)

Between January 2008 and November 2011, seven cases were reported in the media. (See Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012, and Criminal HIV Transmission)

Given that there are an estimated 32,498 people living with (diagnosed) HIV in Illinois (Source: http://www.statehealthfacts.org), prosecutions per capita of PLHIV are an estimated 3.08 per 1000.

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.

Further cases and news can be found at: http://www.hivjustice.net/country/us/il-illinois/