Fact check: Boebert falsely claims liberals have ‘legalized’ knowingly spreading HIV

Colorado Republican Rep. Lauren Boebert, known for her outspoken right-wing views, tweeted last week: “The same liberals that legalized knowingly spreading HIV are now pushing Americans to take COVID tests or show proof of vaccination to enter restaurants. No. We’re not playing your games.”

Facts First: Boebert’s claim about liberals legalizing knowingly spreading HIV is false. No state has “legalized” the knowing spread of HIV. Some states, including Iowa under a Republican governor in 2014, have reduced some criminal penalties for people who expose or potentially expose another person to HIV — so that people with HIV are no longer treated far more punitively than people with other viruses. One Democratic-run state, Illinois, is in the process of eliminating a law that, among other things, makes it a felony for a person with HIV to have sex without a condom without first disclosing their HIV status. But even after the repeal of that HIV-specific law, anyone who intentionally tries to infect someone with the virus could still be prosecuted under the state’s general criminal laws.

States’ changes to their HIV laws have come in response to criticism from activists, doctors and public health experts who have argued that laws criminalizing sexual activities and other behavior by people with HIV are a discriminatory and harmful relic of the homophobic AIDS panic of the 1980s. Far less was known about HIV back then, and today’s highly effective HIV medications, which can sharply reduce or even eliminate the risk of sexual transmission, were not yet available.

Before Democratic Washington Gov. Jay Inslee signed a new law in 2020, the state’s criminal assault law put HIV, unlike every other virus, in the same sentence as “poison” — making it a felony punishable by up to life in state prison to administer, expose, or transmit HIV “with intent to inflict great bodily harm.” The new law narrowed the kinds of conduct by a person with HIV that qualify as a crime, and it reduced the penalties. Now, most offenses are a misdemeanor punishable by up to 90 days in county jail; it is a gross misdemeanor, punishable by up to 364 days in county jail if the person committing the offense knowingly misrepresented their infection status to their partner.

More than 30 US states had laws criminalizing HIV exposure (in various ways) as of 2020, according to the federal Centers for Disease Control and Prevention, which says that “many state laws are now outdated and do not reflect our current understanding of HIV.”

Since Boebert did not respond to a request for comment, we’re not certain who she was talking about when she alleged that the same liberals who supposedly legalized the knowing spread of HIV are also “pushing Americans to take COVID tests or show proof of vaccination to enter restaurants.”

Though some individual restaurant owners have independently decided to require customers to show proof of vaccination or a negative test, no state government has forced restaurants to impose such restrictions. California is now requiring proof of vaccination or a negative test to attend indoor events with 5,000 or more people but not to go to restaurants.

Boebert’s House office referred CNN’s questions to a campaign email account, noting that she posted the tweet from her personal Twitter account and not her official congressional account. The campaign account did not reply.

The California law

We can’t go through every change a state has made to its HIV-related laws, but here is another example from a Democratic-run state.

A California law in 2017, signed by Democratic then-Gov. Jerry Brown, made it a misdemeanor punishable by up to six months in county jail — rather than the previous felony punishable by up to eight years in state prison — for a person to knowingly expose someone to HIV with the intent to infect them. It had already been a misdemeanor in California to knowingly expose someone to communicable diseases in general; HIV had been singled out for sharply elevated penalties.

The new California law also specified that, for a crime to have been committed, the person had to have engaged in conduct that posed a “substantial risk of transmission” to someone who didn’t know they had the virus.

The “substantial risk” provision was a recognition of the fact that medication can suppress HIV so successfully that, according to the National Institutes of Health and the United Nations, a person cannot sexually transmit the virus. Activists around the country have warned that broad old laws leave people with HIV vulnerable to prosecution for their sexual activity even when there is not a risk of sexual transmission.

Under the new California law, if a person meets all the other requirements for the offense but HIV is not actually transmitted, the maximum penalty is 90 days in jail.

The Illinois bill

The Illinois state House and Senate have passed a bill to repeal an existing law that makes it a felony for a person with HIV to have sex without a condom without first informing their partner of their HIV status. That existing law requires “specific intent” to commit the offense, but it’s not clear whether that means intent to transmit HIV or merely intent to have no-condom sex.

The new bill, which Democratic Gov. JB Pritzker is expected to sign in the near future, has been widely described as a “decriminalization” bill. But that term can mislead people: the bill would not mean that Illinois residents are immune from criminal prosecution if they deliberately infect someone with HIV. As the CDC notes, general criminal statutes can be used to charge people for such behavior.

The office of the State’s Attorney for Cook County, where Chicago is located, told CNN on Monday that the Illinois bill would not make prosecutions impossible there.

“In the occasion that evidence proves that someone intentionally transmits HIV to others, there is an argument that they could be charged with Aggravated Battery,” the office said in an unsigned email, emphasizing that prosecutors would assess the facts of each case on its own merits.

Texas is a good example of how eliminating HIV-specific criminal laws does not mean legalization of the knowing spread of HIV. The state decided in 1994 to get rid of its specific felony addressing potential HIV exposure, according to The Center for HIV Law & Policy, which tracks HIV-related criminal laws and advocates liberalization — but residents continued to be prosecuted under other laws, such as assault laws, for various behaviors that exposed someone to HIV or was alleged to pose a risk of doing so.

Catherine Hanssens, founder and executive director of The Center for HIV Law & Policy, argued Monday that laws criminalizing the behavior of HIV-positive people are both destructive to people who have not acted maliciously and unnecessary for prosecuting the small number of people who do intentionally try to hurt somebody by spreading the virus.

“If somebody picks up a chair with the intent of bashing your head in, that should be a crime. Do we need a chair-specific criminal law? I don’t think so,” Hanssens said.