Summary of Indiana Codes that Criminalize HIV

(IC= Indiana Code; IC-16 refers to Health Code IC-35 refers to Criminal Code)

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  1. IC 16-41-7 Communicable Disease: duty or authority to warn or notify
  2. IC 35-45-21-3 Failure of carries of dangerous communicable diseases to warn persons at risk
  3. IC 16-41-14-17 Donation, sale, or transfer of HIV infected semen
  4. IC 35-45-21-1(b)-(c) Transferring contaminated body fluids
  5. IC 35-42-2-1(b2), (e), (g) Battery [HIV sentence enhancement
  6. IC 35-45-16-2(a)-(f) Malicious Mischief [HIV sentence enhancement]
  7. Indiana Statue(s) that criminalize HIV status

IC 16-41-7 Communicable Disease: duty or authority to warn or notify

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  • IC 16-41-7-1 Carriers’ duty to warn persons at risk;
  • IC 16-41-7-2: Reporting of persons posing serious and present danger or at risk
  • IC 16-41-7-3: Notification by physician
  • IC 16-41-7-4: Investigation of carriers; notification of persons at risk
  • IC 16-41-7-5: Violations

IC 16-41-7-1 carriers’ duty to warn persons at risk: Criminalizes nondisclosure of HIV, HBV and AIDS status in cases where a person knows their disease status and engages in sexual or needle sharing activity that has been shown to “epidemiologically transmit a dangerous communicable disease [specifically HIV, HBV and AIDS]”.  This means that a person who:

  1. Knows that he/she is HIV or HBV positive,
  2. Has a “duty to warn” [disclose to] past, present and potential sexual (or needle-sharing) partners of his/her HIV or HBV status AND advise the person that they need to seek health care, such as counseling and testing.

IC 16-41-7-2: Reporting of persons posing serious and present danger or at risk; IC 16-41-7-3: Notification by physician; IC 16-41-7-4: Investigation of carriers; notification of persons at risk: Together, these codes:

  1. Require physicians who provide HIV care to “inform the patient” of the duty to warn;
  2. Waives a patient’s physician-patient privilege when a physician notifies a health officer or a “person at risk” about a person’s HIV status or non¬compliant behavior with “duty to warn”.
  3. Physicians and non-physicians have a right to report a patient’s HIV-positive status to a health officer if they have reasonable cause to believe the patient  (a) poses a serious and present danger to the health of others; or (b) has engaged  in  non-compliant behavior with a health directive; or (c) “is suspected of being a person at risk”.
  4. Outlines conditions under which a physician may also personally inform a patient’s sexual or needle-sharing partner, or a person legally responsible for the patient, of a patient’s HIV status and need for them to seek counseling, testing and health care.
  5. Physicians and non-physicians  who reports in good faith to a health  officer, and the case of Physicians,  the patient’s sexual or needle-sharing partner, an  individual’s  HIV  status  are immune  from liability  in  civil, administrative, disciplinary, and criminal actions and false reports subject to punishment.

IC 16-41-7-5: Violations: A person who recklessly violates or fails to comply with IC 16-41-7 (2-4) commits a Class B misdemeanor.

IC 35-45-21-3 Failure to warn persons at risk.

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Knowing or intentional violation or failure to comply with 16-41-7 (Duty to Warn) is a Class D felony (punishable by up to 3 yrs. in prison and a $10,000 fine); every day constitutes a new violation.

IC 16-41-14-17 Donation, sale, or transfer of HIV infected semen

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IC 35-45-21-1 Transferring contaminated body fluids

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Together these two codes (3 and 4) make it a felony for HIV positive persons to donate or sell their semen, blood, or plasma. The law does not apply to people who donate semen or blood for research purposes or notify the blood center that the blood or blood component must be discarded and not used for any purpose.

  1. It is a Level 5 felony (up to six years imprisonment and up to a $10,000 fine), for a person to recklessly, knowingly, or intentionally donate, sell, or transfer blood or semen for artificial insemination that contains HIV.
  2. If the act results in HIV transmission, however, the level of the offense is not entirely clear. Under IC 35-45-21-1, it is a Level 3 felony (up to twenty years imprisonment and up to a $10,000 fine). Yet under IC 16-41-14-17, it is a Level 4 felony (up to twelve years imprisonment and up to a $10,000 fine). It appears that during the major revision of Indiana’s criminal code, which added 35-45-21-1 as a new statute, replacing 35-42-1-7, effective July 1, 2014 – an oversight occurred which resulted in this contradiction.

IC 35-42-2-1(b), (e), (g) Battery

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Makes it a felony for HIV positive persons to expose others to any bodily fluid, including those not known to transmit HIV. Specifically, a person who knowingly or intentionally:

  1. In a rude, insolent, or angry manner places any bodily fluid or waste on another person; commits battery, a class B misdemeanor [Class A misdemeanor if bodily injury occurs]; if serious bodily injury occurs, it is a level 5 felony.
  2. This code includes sentence enhancement for HIV, Hepatitis [unspecified] and TB and makes it a level 6 felony if the person knew or recklessly failed to know that the bodily fluid or waste placed on another person was infected with hepatitis, TB, or HIV.
  3. And further sentence enhancement for just HIV – becomes a level 5 felony if the person placed the bodily fluid or waste on a public safety official.

IC 35-45-16-2(a)-(f) Malicious Mischief

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This code also makes it a felony for HIV positive persons to expose others to, or with the intent for others to ingest, any bodily fluid, including those not known to transmit HIV. Specifically, a person who recklessly, knowingly, or intentionally:

  1. Places human body fluid or fecal waste in a location with the intent that another person will involuntarily touch, or ingest, the bodily fluid or fecal waste commits malicious mischief, a class B misdemeanor [if ingest, then Class A misdemeanor].
  2. Includes sentence enhancement for hepatitis A-G, HIV or TB – Level 6 felony if the person knew or recklessly failed to know that the body fluid or fecal waste was infected with the said mentioned viruses/TB
  3. It is a Level 5 felony if it results in transmission of hepatitis A-G or TB. But allows for
    further sentence enhancement for HIV – Level 4 felony if it results in transmission of HIV.

Indiana Statue(s) that criminalize HIV status

Click here for this document (Indiana is on pgs. 67-77)
This document by the Center for HIV Law and Policy also summarizes the Indiana laws that criminalize HIV, and goes further to describes known prosecutions that have taken place, defenses used, and prosecutions that have taken place under general criminal laws.