HIV is one of the most serious diseases facing the world today. Consequently, intentionally putting someone at risk for contracting HIV is a serious crime and carries severe punishments in Nevada.

What is the legal definition of Intentional transmission of HIV?

Intentional Transmission of HIV is defined in NRS 201.205.

NRS 201.205 – Penalty; affirmative defense.

  1. A person who, after testing positive in a test approved by the State Board of Health for exposure to the human immunodeficiency virus and receiving actual notice of that fact, intentionally, knowingly or willfully engages in conduct in a manner that is intended or likely to transmit the disease to another person is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.
  2. It is an affirmative defense to an offense charged pursuant to subsection 1 that the person who was subject to exposure to the human immunodeficiency virus as a result of the prohibited conduct:
    1. Knew the defendant was infected with the human immunodeficiency virus;
    2. Knew the conduct could result in exposure to the human immunodeficiency virus; and
    3. Consented to engage in the conduct with that knowledge.

I know that “intentional” has different definitions in different contexts, so what does this statute mean by “Intentionally”?

You are correct. There are statutes that define “Intentional” as either deliberate or a wonton disregard.

In this statute, however, that is not the case. Here, “Intentional” means only that you intentionally committed acts that would likely lead to the transmission of HIV.

It is also necessary that you were aware of your own HIV positive status. If you have never been tested, or if you’ve been tested, but have not been notified of the positive results of your test, then you cannot be charged with Intentional Transmission of HIV.

So, what kinds of acts could lead to charges?

Basically, having sex and sharing needles. It is not

What are the possible penalties?

Given the seriousness of contracting HIV, Intentional Transmission of HIV is a category B felony in Nevada, carrying with it a possible penalty of:

  • Between 2 and 10 years in a Nevada State Prison; and/or
  • Possible fines up to $10,000.

Are there any Defenses?

Yes, of course there are. As you may have noticed, there are defenses based on whether you knew about your HIV positive status:

  • Lack of Knowledge – If you were entirely unaware that you were HIV positive, then there is no way that you can “intentionally” transmit HIV. However, if you have reason to know that you could possible have HIV and have not gotten tested for fear of finding out, then you lack of knowledge is willful and the Court will not accept it as a defense. As an example, if you reasonably believe that every one of your sexual partners is HIV negative, and you have never shared needles, then you have no reason to believe that you may have HIV. However, if you learn that a past sexual partner has tested positive, or you have shared needles, then you have a reason to believe that you may have contracted HIV and you should get yourself tested. Consequently, if you do not get tested, then you cannot claim the defense of lack of knowledge.
  • No Intent – If you did not intentionally partake in any activity that may spread HIV, then you should not be convicted of Intentionally Transmitting HIV. In other words, if you use a needle and throw it away, and then someone else uses that needle without your knowledge, then you did not intentionally partake in acts intended to transmit HIV. Similarly, if you can show that sexual activity occurred when you were unconscious, then you were not intentionally partaking in the activity. Without intent to commit the acts, the charges against you should be dropped or dismissed.
  • Consent – There are three elements to a consent defense:
    • The other party must have known that you were infected with HIV;
    • The other party must have known that the activity would result in exposure to HIV; and
    • The other party consented to the activity despite their knowledge

What should I do if I’ve been charged with Intentionally Transmitting HIV?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.

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