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PLEASE NOTE that the answers in this series use terms that may be considered offensive. If you are offended easily, please hit the BACK button on your browser.

Question 1: Is it a crime to expose someone else to your HIV?

Answer: The short answer is "maybe, it depends; but not in the case of some sort of accident; call a lawyer."

Michigan has a law, often called the "HIV exposure law," that says that if you know that you are HIV-positive and you engage in sexual penetration without disclosing your status to your partner beforehand then you have committed a felony. This law does not apply to accidents, like if an HIV-positive car accident victim bleeds on a paramedic. But in most circumstances involving a real risk of HIV transmission (that would be sex or sharing needles), then only if you did not disclose your status.

QUESTION 2: Yeah, but if the person who is being penetrated is positive, the law doesn't apply to them, right?

ANSWER: The felony exposure law is at Michigan Compiled Law 333.5210, which says:

"1. A person who knows that he or she has or has been diagnosed as having acquired immunodeficiency syndrome or acquired immunodeficiency syndrome related complex, or who knows that he or she is HIV infected, and who engages in sexual penetration with another person without having first informed the other person that he or she has acquired immunodeficiency syndrome or acquired immunodeficiency syndrome related complex or is HIV infected, is guilty of a felony."

The key phrase in the law is "engages in sexual penetration." Note that this phrase suggests nothing at all about who is doing what. Either you are "engaging" or you are not.

In its second section (not included above), the statute lists four specific acts that are included in the definition of sexual penetration, but the bottom line is that the law does not include kissing on the mouth.

Please please please be very clear about this. If for some reason somebody out there believes that they are relieved of the burden of disclosing their HIV status because they are the receptive partner, note that the language of the law keeps saying "he or she." This is yet more evidence that the Legislature absolutely intended to reach the receptive partner, too. The local prosecutor or the attorney general can pursue charges under this law without worrying about who is the insertee and who is the insertor....that is not at all relevant, under this law.

QUESTION 3: What about my intent? What if I am not a doctor, so I don't *know* that 'HIV anti-body positive' means I am a carrier of a putative virus named 'HIV,' so I don't *know* that I am infectious.

ANSWER: Nope, stop right there. Here's the thing. The law applies if you know you are HIV-positive. The law is not concerned with the intent of the partners, whether either intends to infect the other or not, or whether the person who has been diagnosed as HIV-positive actually believes it.

Even if a person never intended to learn their HIV status, once it is identified and they do learn it, then this particular law would arguably apply. What you understand about HIV, and about transmission of HIV, and risky behavior, and what your partner knows about you...not relevant. This statute defines what is basically a strict liability crime: intent is irrelevant. You don't have to intend to infect somebody to be held responsible for this particular felony.

Just three things are involved in the analysis. One: Did one person know that they were HIV-positive? Two: Did that person engage in sexual penetration with another person? Three: Did the first person disclose their HIV-positive status prior to the sexual penetration? That's it, the whole analysis.

Beyond that, knowing your test result does not require knowing or understanding the science that underlies it. And it doesn't even require that you agree with it. Either you had an HIV test and got a positive result, or you did not. No intent required here, either, although there have been cases surrounding how somebody actually got tested -- like they intended to have a test for one thing, and somebody tested the sample for HIV while they were at it. Even in that sort of case, though, once the sample is determined to be HIV-positive and the result is given to the patient, they are very likely to be thereafter burdened with that knowledge and must conduct themselves accordingly.

You'll notice that these answers are all based on Michigan law. If you are in Michigan, had sex in Michigan, want to go to Michigan, or are driving through Michigan, this is useful information. If, on the other hand, you plan to never see the sunny shores, sandy dunes and rocky hills of Marvelous Michigan's islands and peninsulas, then you need to know the state law where you usually hang out. Call or email us, and we'll look into it for you. See Contact Us.

 Answered by Kendra S. Kleber JD

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Explaining HIV/AIDS-related legal rights and responsibilities in support of the self-sufficiency, independence and quality of life of people living with HIV/AIDS.

NOTE: The information on this site and in this message is not legal advice, and does not create or imply an attorney-client relationship or an offer to form such a relationship. It is just an opinion. Follow it, ignore it - your choice. But it is not legal advice upon which you can or should rely without consulting an attorney to advise you on your particular situation based on your particular facts and circumstances.