Acting A.G. takes aim at law criminalizing sexual activity by people with HIV

Acting New Jersey Attorney General Andrew J. Bruck told county prosecutors Wednesday they should exercise caution before using a decades-old state law that criminalizes certain sexual activity by people living with HIV.

The 1997 law makes it a third-degree crime for someone living with HIV to engage in an “act of sexual penetration” without the informed consent of their partner. Relatively few people are charged under the law, but Bruck issued a set of guidelines to prosecutors because he said they have “significant discretion” in enforcing it.

Bruck said LGBT rights group Garden State Equality brought the issue to his attention.

“Even if not a lot of these cases are charged, the presence of the law still creates a stigma for folks living with HIV,” Bruck told the New Jersey Monitor. “We want to have some assurance that prosecutors wouldn’t be bringing these cases in inappropriate circumstances.”

The law, Bruck wrote in his two-page directive, was enacted at a time when HIV was considered a death sentence.

But medical advancements since then have transformed it to a manageable, chronic disease, he said. Treatment involving antiretroviral therapy can cut viral loads to undetectable levels, making it nearly impossible to transmit through sexual activity, he noted. HIV deaths have fallen steadily in the past two decades, data shows.

Yet stigma and discrimination persist, and that can discourage people from learning their HIV status and disclosing it to medical providers and sexual partners, undermining public-health strategies intended to improve testing, treatment, and prevention of the disease, Bruck said.

Insider NJ columnist Jay Lassiter shared his story Tuesday about living with HIV and its stigma, writing: “Culturally, medically, and socially we’ve come a long way since the bad old days. But many of these outdated laws are still on the books including here New Jersey, something our supposedly progressive state Legislature could address but have not.”

Thirty-seven states including New Jersey have such laws, according to the federal Centers for Disease Control. The CDC and the U.S. Department of Justice’s Civil Rights Division have urged states to repeal or update such laws, which also have been condemned by the American Medical Association and American Psychological Association.

Bruck directed prosecutors to enforce the law only when an individual forces or coerces their partner to engage in sexual activity; engages in sexual activity for the purpose of transmitting HIV to their partner; and/or knowingly disregards a medically appropriate HIV treatment plan at the time of the sexual activity.