Del. Kris Fair (D-Montgomery) sponsored House Bill 39, to repeal a law that makes it a crime to knowingly spread HIV. It received bipartisan approval from the House this week. (Photo by Danielle J. Brown/Maryland Matters).
Legislation that would remove a criminal penalty for intentionally transferring HIV to another person sailed through both the House and Senate chambers this week, garnering bipartisan support in the process.
That might be a surprise to some. In fact, Sen. Will Smith (D-Montgomery), who chairs the Judicial Proceedings Committee, said he was skeptical of the legislation when it first came to his committee last year. He ended up sponsoring the Senate version this year.
“I’ve had reservations on it. I, frankly, was not comfortable with it initially, and that’s because I didn’t understand the scope of how things are actually playing out,” Smith said Tuesday, after the Senate passed Senate Bill 356.
Smith and other supporters say the current law is counterproductive, antiquated and discriminatory. Repealing it would not only help destigmatize those living with HIV, the virus that causes AIDS, but could actually help improve public health, they say.
“The law was, for right or wrong, thought to help curb the transmission of HIV,” said Del. Kris Fair (D-Frederick), who sponsored House Bill 39. “What public health experts and criminal justice organizations have taught us … is that we’ve actually seen the exact opposite.”
The Senate passed its version of the bill 33-11 on Tuesday, picking up two Republican votes. The House version passed 100-36 on Thursday, also picking up a couple Republican votes. One of the bills must still be passed by the other chamber before it can be sent to the governor for his signature, but with each chamber already passing a bill, the legislation is in good shape.
Since 1989, during the height of the AIDS crisis, Maryland has said that “an individual who has the human immunodeficiency virus may not knowingly transfer or attempt to transfer the human immunodeficiency virus to another individual.” A violation is a misdemeanor, punishable by a fine up to $2,500 or up to three years in prison.
Fair says the law actually hinders public health efforts, “causing people not to get tested, to stigmatize people living with HIV, criminalized otherwise rather innocuous behavior … that would have nothing to do with the transmission or potential transmission of HIV.”
Currently, people living with HIV “walk around on a day-to-day basis with this weird Sword of Damocles hanging over their heads. This code basically dictates their day-to-day lives,” Fair said.
“Because of the way that it’s written, because of the way it’s interpreted and because of the way it’s used by law enforcement and by the criminal justice system, innocuous day-to-day interactions that could be physical in nature or not, suddenly get applied to this code,” he said.
Fair said that the charge can be misused. He said that there have been situations where people with HIV have been charged after spitting on or biting someone, even though HIV does not spread through saliva. He also said that people can weaponize the law.
“A few examples include relationships that have soured – two consenting individuals were in a consensual sexual relationship,” he said. “But they had some kind of falling out, and then one person goes and files charges against their former partner because they’re mad at them … they’re stuck having this criminal charge levied against them.”
According to a report from the Williams Institute, there have only been 148 HIV-related charges in Maryland from 2000-2020, when the first HIV-related charge was issued in Maryland to the most recent charge as of 2024. The Williams Institute reports that more than 80% of the cases in that timeframe were dropped.
“It’s such an ineffective and misused tool,” Fair said. Despite that, efforts to repeal the law have been more than a decade in the making. Del. Shirley Nathan-Pulliam (D-Baltimore City and Baltimore County) introduced the first version of the bill in 2013.
“As a nurse, she recognized the way that this kind of criminalization of the day-to-day lives of Marylanders further stigmatizes the issue around HIV and actually frustrated public health efforts to reduce the transmission,” Fair said.
Fair took up the effort in 2023, when it passed the House for thei first time, but did not move in the Senate.
When the bill came up last year,Smith let it die in his committee.
“I was uncomfortable with it,” he said. “This was just not high up on the ledger. So I didn’t move on it.”
A year later, Smith is on board with the legislation and agreed to sponsor it because he believes the current law is “very discriminatory.”
“No other communicable disease was pulled out separately,” he said of the law that he said was “skewed towards, frankly, Black men.”
He also added that there are other charges, such as reckless endangerment, that are more appropriate to use in the case of someone maliciously spreading HIV.
“For me it was a way to say, ‘We can get rid of this antiquated thing that was really created for discriminatory practice,’ and also treat all of these dangerous communicable disease the same way,” Smith said.