Guidance Reflects Recommendations of American Medical Association, American Psychological Association, and U.S. Department of Justice’s Civil Rights Division

TRENTON – Acting Attorney General Andrew J. Bruck today issued guidance to prosecutors statewide to prevent inappropriate enforcement of a state law that makes it a crime for an individual living with HIV to engage in certain sexual activity without the informed consent of their partner.

As today’s guidance explains, advancements in medical treatment over the past several decades have transformed HIV/AIDS from a devastating epidemic to a manageable, chronic disease. In 1997, when the state law in question was enacted, HIV was still thought to be a death sentence. Now, according to the Centers for Disease Control and Prevention (CDC), 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 notes that, even as the risk of infection and mortality has decreased, the stigma associated with the virus remains high and people living with HIV continue to face discrimination. This discourages 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, and 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,” said Acting Attorney General Bruck. “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 guidance that we are providing to prosecutors makes clear that this state law should be enforced only when specific aggravating factors are present,” said Director Lyndsay Ruotolo of the Division of Criminal Justice. “Our goal is to ensure that if anyone living with HIV is criminally charged under this statute, it is done justly and consistently.”

“We recognize that 40 years after the first CDC-reported AIDS case in this country, medical advancements have dramatically changed outcomes for individuals living with HIV. However, outdated laws such as this have remained on the books and are highly discriminatory, have not proven to reduce HIV transmission, and discourage individuals from learning their HIV status,” said Esther Suarez, President of the County Prosecutors Association of New Jersey and Hudson County Prosecutor. “Acting Attorney General Bruck’s guidance issued today will ensure that individuals living with HIV in New Jersey are not unjustly stigmatized or prosecuted and will reinforce public health protocols that are critical to sustaining the progress made in treatment of this disease.”

“These outdated and ill-formed laws were born out of panic and ignorance,” said Executive Director Christian Fuscarino 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. Garden State Equality commends Acting AG Bruck for his leadership on this important issue.”

“Hyacinth Foundation proudly supports the efforts of Acting Attorney General Bruck to provide guidance to all prosecutors regarding N.J.S.A 2C:34-5(b) in light of the advances in the treatment and prevention of HIV,” said Axel Torres Marrero, Senior Director of Public Policy and Prevention for the Hyacinth Foundation. “We are proud and grateful to support all leaders who today recognize that New Jersey needs to re-examine our state laws, assess the laws’ alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes. We welcome Acting Attorney General Bruck’s leadership and guidance.”

The law, N.J.S.A. 2C:34-5(b), 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 their partner. While noting that relatively few people are charged under the law, the guidance issued today provides specific direction to prosecutors regarding how to exercise their “significant discretion” in enforcing the law.

The guidance directs prosecutors to consider the following factors in deciding whether to charge an individual under the law:

• Whether the individual forced or coerced their partner to engage in sexual activity;
• Whether the individual engaged in sexual activity for the purpose of transmitting HIV to their partner; and/or
• Whether the individual 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 Division of Criminal Justice before proceeding.

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