The human immunodeficiency virus (“HIV”), is a retrovirus which causes AIDS. As of the date of this article, there is no cure for HIV or AIDS. However, there are medications that can greatly reduce its transmissibility and ability of the virus to cause death.
With that said, the Florida legislature recognizes how traumatic and life-changing such an infection can be and has criminalized its transmission when the transmitter is aware of his/her infection and the recipient is a victim of one of a set of enumerated crimes.
The law works in a unique manner. The first time a person is convicted of an enumerated crime where there is the transmission of bodily fluids from the offender to the victim, the offender shall be ordered to undergo HIV/AIDS testing. The results of this test are disclosed to various people and organizations; most notably, the offender and the victim. This, of course, can give a victim peace of mind knowing that they were not infected or allows them to seek early treatment.
Here’s where it becomes criminal: a person who has been ordered to undergo HIV/AIDS testing pursuant to the preceding paragraph, and the results were positive, who commits one of the enumerated crimes again, commits a separate crime of Criminal Transmission of HIV, which is punished as a third-degree felony. This is in addition to the underlying criminal act that may be punished accordingly.
Criminal Transmission of HIV – The Eligible Crimes
So, what are the crimes that could subject a person to liability under this section? For the most part, they are the crimes that logically could result in the exchange of bodily fluids such as rape and battery. The full list is below:
lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
aggravated child abuse;
abuse of an elderly person or disabled adult;
aggravated abuse of an elderly person or disabled adult;
sexual performance by person less than 18 years of age;
crimes relating to donation of blood, plasma, organs, skin, or other human tissue; or
Fla. Stat. 775.0877
Below is the complete statute as of the date of this article:
(1) In any case in which a person has been convicted of or has pled nolo contendere or guilty to, regardless of whether adjudication is withheld, any of the following offenses, or the attempt thereof, which offense or attempted offense involves the transmission of body fluids from one person to another:
(a) Section 794.011, relating to sexual battery;
(b) Section 826.04, relating to incest;
(c) Section 800.04, relating to lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
(d) Sections 784.011, 784.07(2)(a), and 784.08(2)(d), relating to assault;
(e) Sections 784.021, 784.07(2)(c), and 784.08(2)(b), relating to aggravated assault;
(f) Sections 784.03, 784.07(2)(b), and 784.08(2)(c), relating to battery;
(g) Sections 784.045, 784.07(2)(d), and 784.08(2)(a), relating to aggravated battery;
(h) Section 827.03(2)(c), relating to child abuse;
(i) Section 827.03(2)(a), relating to aggravated child abuse;
(j) Section 825.102(1), relating to abuse of an elderly person or disabled adult;
(k) Section 825.102(2), relating to aggravated abuse of an elderly person or disabled adult;
(l) Section 827.071, relating to sexual performance by person less than 18 years of age;
(m) Sections 796.07 and 796.08, relating to prostitution;
(n) Section 381.0041(11)(b), relating to donation of blood, plasma, organs, skin, or other human tissue; or
(o) Sections 787.06(3)(b), (d), (f), and (g), relating to human trafficking,
the court shall order the offender to undergo HIV testing, to be performed under the direction of the Department of Health in accordance with s. 381.004, unless the offender has undergone HIV testing voluntarily or pursuant to procedures established in s. 381.004(2)(h)6. or s. 951.27, or any other applicable law or rule providing for HIV testing of criminal offenders or inmates, subsequent to her or his arrest for an offense enumerated in paragraphs (a)-(n) for which she or he was convicted or to which she or he pled nolo contendere or guilty. The results of an HIV test performed on an offender pursuant to this subsection are not admissible in any criminal proceeding arising out of the alleged offense.
(2) The results of the HIV test must be disclosed under the direction of the Department of Health, to the offender who has been convicted of or pled nolo contendere or guilty to an offense specified in subsection (1), the public health agency of the county in which the conviction occurred and, if different, the county of residence of the offender, and, upon request pursuant to s. 960.003, to the victim or the victim’s legal guardian, or the parent or legal guardian of the victim if the victim is a minor.
(3) An offender who has undergone HIV testing pursuant to subsection (1), and to whom positive test results have been disclosed pursuant to subsection (2), who commits a second or subsequent offense enumerated in paragraphs (1)(a)-(n), commits criminal transmission of HIV, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person may be convicted and sentenced separately for a violation of this subsection and for the underlying crime enumerated in paragraphs (1)(a)-(n).
(4) An offender may challenge the positive results of an HIV test performed pursuant to this section and may introduce results of a backup test performed at her or his own expense.
(5) Nothing in this section requires that an HIV infection have occurred in order for an offender to have committed criminal transmission of HIV.
(6) For an alleged violation of any offense enumerated in paragraphs (1)(a)-(n) for which the consent of the victim may be raised as a defense in a criminal prosecution, it is an affirmative defense to a charge of violating this section that the person exposed knew that the offender was infected with HIV, knew that the action being taken could result in transmission of the HIV infection, and consented to the action voluntarily with that knowledge.
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Adam Bantner is a Board-Certified Criminal Trial Law Attorney who is also AV Preeminent Rated by Martindale-Hubbell, the leading attorney rating system. If you find yourself or a loved one being charged with criminal transmission of HIV, give us a call to set up your free consultation. 813.416.7965. We can help!
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Adam Bantner, II is a Board Certified Criminal Trial Law Attorney representing those accused of crimes in Hillsborough and Polk Counties. When you are facing criminal charges, you want an expert in your corner. The Florida Bar has recognized Adam as an expert criminal defense attorney.
I have been defending the accused since 2006 and am Past President of the Hillsborough County Association of Criminal Defense Attorneys.
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