N.J. acting attorney general issues guidance to prosecutors on enforcement of outdated law governing sex lives of people with HIV

Acting New Jersey Attorney General Andrew Bruck on Wednesday issued guidance prosecutors statewide to prevent the inappropriate enforcement of a state law from 1997 that makes it a crime for a person living with HIV to engage in certain sexual activity without the informed consent of a partner.  

People living with HIV who adhere to a medically appropriate treatment plan involving antiretroviral therapy can reduce their viral loads to such a low level that the virus is undetectable in testing and virtually impossible to transmit through sexual activity. The guidance from the attorney general notes that the stigma associated with the virus remains high, and that people living with HIV continue to face discrimination, which discourages some people from learning their HIV status and disclosing it to medical providers and sexual partners.

A number of professional organizations, including the American Medical Association and American Psychological Association, have criticized laws that criminalize sexual activity by those living with HIV. The U.S. Department of Justice’s Civil Rights Division has urged states to repeal or reform such laws. Legislative action would be required in order to repeal or modify New Jersey’s law.  

“New Jersey’s 24-year-old law criminalizing sexual activity by those living with HIV fails to recognize current realities and further stigmatizes the disease,” Bruck said. “This guidance is designed to ensure that people are not prosecuted unjustly and that we do not undermine public-health strategies aimed at encouraging testing, treatment, and prevention.”

The state law makes it a third-degree crime for a person living with HIV to engage in an “act of sexual penetration” without the informed consent of a partner. While noting that relatively few people are charged under the law, the guidance issued provides specific direction to prosecutors regarding how to exercise their “significant discretion” in enforcing the law. The guidance directs prosecutors to consider various factors in deciding whether to charge an individual under the law, including whether the person forced or coerced their partner to engage in sexual activity, whether the person engaged in sexual activity for the purpose of transmitting HIV to their partner, whether the person was adhering to a medically appropriate HIV treatment plan at the time of the sexual activity. The guidance states that it is “virtually impossible” to imagine a scenario where it would be appropriate to charge an individual if that person’s HIV viral load was undetectable at the time of the sexual activity and no aggravating factors existed. Prosecutors considering criminal charges in such circumstances must consult with the director of the state’s Division of Criminal Justice before charging someone.

“These outdated and ill-formed laws were born out of panic and ignorance,” said Christian Fuscarino, Executive Director of Garden State Equality. “For too long fear and misunderstanding have kept these laws on the books and it’s past time the Garden State corrects these unjust punishments.”