This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0659a.CRJ
DATE: 3/30/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 659 Sexually Transmissible Diseases
SPONSOR(S): Criminal Justice Subcommittee, Robinson, F.
TIED BILLS: IDEN./SIM. BILLS: SB 1522
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 12 Y, 6 N, As CS Hall Hall
2) Justice Appropriations Subcommittee
3) Judiciary Committee
SUMMARY ANALYSIS
Human immunodeficiency virus (HIV) attacks the body’s immune system, reducing its ability to fight off
infections and disease. Florida law criminalizes certain conduct committed by an HIV-positive person who is
aware of such diagnosis. A person commits a third degree felony when he or she, knowing of his or her HIV
diagnosis:
Has sexual intercourse with another person after being informed of the risk of HIV transmission, unless
the other person has consented after being informed of the diagnosis, a violation of ss. 384.24 and
384.34, F.S.;
Donates blood, plasma, organs, skin, or other human tissue after being informed that HIV can spread
through such donation, a violation of s. 381.0041, F.S.; or
Tested positive for HIV after a conviction for or plea to a specified offense involving the transmission of
bodily fluids, was informed of the results, and commits a subsequent specified offense involving the
transmission of bodily fluids, a violation of s. 775.0877, F.S.
However, a person who has sexual intercourse, without informing and obtaining the consent of his or her
sexual partner, after being informed that he or she is infected with a specified sexually transmitted infection
(STI) only commits a first degree misdemeanor.
The Florida Department of Health (DOH) rules regulate STI testing, confidentiality of information, disease
reporting, quarantine orders, and notification requirements, and impose a $500 fine for each violation of such
rules.
No effective cure for HIV exists, but antiretroviral therapy can slow or prevent disease progression and reduce
the amount of HIV in a person’s blood (viral load), which in turn reduces the likelihood of transmission. To
reflect the reduced risk of HIV transmission due to advances in medical treatment, CS/HB 659:
Amends ss. 381.0041, 384.34, and 775.0877, F.S., to reduce from a third degree felony to a first
degree misdemeanor:
o Engaging in sexual conduct that creates a substantial risk of transmission by a person with HIV,
knowing the risk of HIV transmission, without disclosing such diagnosis to his or her sexual
partner;
o Criminal transmission of HIV when a person has tested positive for HIV after a court ordered
test, was informed of the test results, and commits a subsequent offense involving the
transmission of bodily fluids; and
o Donating blood, organs, and other human tissue by persons with HIV not deemed medically
appropriate by a licensed physician.
Amends s. 381.0041, F.S., to permit the donation of blood, organs, and other human tissue by a person
with HIV if a licensed physician deems the donation medically appropriate; and
Amends 384.34, F.S, to delete the fine for a violation of DOH rules regarding STIs and create a third
degree felony for a second or subsequent violation of s. 384.24, F.S.
The bill may have a negative indeterminate impact on state government by reducing prison beds and a positive
indeterminate impact on local governments by increasing jail beds.
The bill provides an effective date of July 1, 2023. STORAGE NAME: h0659a.CRJ PAGE: 2
DATE: 3/30/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Human immunodeficiency virus (HIV) spreads through the transfer of blood, semen, pre-seminal fluid,
rectal fluids, vaginal fluids, and breast milk from an infected person to the mucous membranes or
damaged tissue of a non-infected person.
1
Common methods of HIV transmission include unprotected
anal or vaginal sex and sharing needles or syringes for drug injections.
2
Less common methods of
transmission include the passage of HIV from mother to child during pregnancy, birth, or breastfeeding
and being stuck with an HIV-contaminated needle or other sharp object, usually in a healthcare
setting.
3
Rare methods of transmission include oral sex, receiving blood transfusions, blood products,
or organ or tissue transplants contaminated with HIV, bites, and kissing.
4
Once transmitted, HIV attacks the infected person’s immune system, specifically, the lymphocytes
known as CD4 cells or T Cells, which participate in an immune response.
5
Untreated, HIV reduces a
body’s ability to fight off infections and disease and can lead to acquired immunodeficiency syndrome
(AIDS), the most severe form of HIV infection.
6
There is no effective cure for HIV, but antiretroviral
therapy (ART) can slow or prevent the disease’s progression and dramatically prolong the lifespan of
an infected person.
7
When treated, an infected person can expect to live nearly as long as a person
without HIV.
8
ART can also reduce the amount of HIV in a person’s blood, known as the viral load.
9
Persons who attain an undetectable viral load have effectively no risk of transmitting HIV through
sexual conduct.
10
In the United States, about 51 percent of an estimated 1.1 million people with HIV
11
had achieved an
undetectable viral load by the end of 2015.
12
In Florida, 62 percent of the 116,944 people living with
HIV
13
had achieved an undetectable viral load.
14
Criminal HIV Exposure Laws
As of 2022, 35 states have laws that criminalize HIV exposure.
15
Such laws attempt to deter HIV
transmission by:
Criminalizing behaviors that result in HIV exposure;
1
Centers for Disease Control and Prevention (CDC), HIV Transmission, https://www.cdc.gov/hiv/basics/transmission.html (last visited
Mar. 27, 2023).
2
Id.
3
Id.
4
Id.
5
Centers for Disease Control and Prevention (CDC), About HIV/AIDS, https://www.cdc.gov/hiv/basics/whatishiv.html (last visited Mar.
27, 2023).
6
Id.
7
Id.
8
Centers for Disease Control and Prevention (CDC), HIV Care Saves Lives infographic, https://www.cdc.gov/vitalsigns/hiv-aids-
medical-care/infographic.html (last visited Mar. 27, 2023).
9
CDC, supra at FN 5.
10
Id.
11
The annual number of new HIV diagnoses in the United States remained stable between 2012 and 2017, with 2017 resulting in
approximately 38,739 new HIV diagnoses. Centers for Disease Control and Prevention (CDC), HIV in the United States and Dependent
Areas, https://www.cdc.gov/hiv/pdf/statistics/overview/cdc-hiv-us-ataglance.pdf (last visited Mar. 27, 2023).
12
Centers for Disease Control and Prevention (CDC), HIV in the United States and Dependent Areas,
https://www.cdc.gov/hiv/pdf/statistics/overview/cdc-hiv-us-ataglance.pdf (last visited Mar. 27, 2023).
13
Florida reported an estimated 4,949 new HIV diagnoses in 2017. Florida Department of Health, HIV Data Center,
http://www.floridahealth.gov/diseases-and-conditions/aids/surveillance/index.html (last visited Mar. 27, 2023).
14
Florida Department of Health, HIV Data Center, http://www.floridahealth.gov/diseases-and-conditions/aids/surveillance/index.html
(last visited Mar. 27, 2023).
15
J. Stan Lehman, et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United
States, AIDS and Behavior (Mar. 15, 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/ (last visited Mar. 27, 2023). STORAGE NAME: h0659a.CRJ PAGE: 3
DATE: 3/30/2023
Criminalizing behaviors that result in STI or other communicable or infectious disease exposure,
which may include HIV exposure;
Increasing sentence lengths for certain crimes committed by a person infected with HIV; and
Increasing sentence lengths for certain crimes committed by a person infected with an STI,
which may include HIV.
16
Additionally, all 50 states have general criminal laws, such as assault, battery, reckless endangerment,
and attempted murder, under which the state can prosecute a person with HIV for engaging in certain
behaviors.
17
Types of Criminalization Laws in the U.S.
18
Opponents of criminal HIV exposure laws argue that such laws can lead to unintended consequences
by encouraging the deferral of HIV testing, reinforcing hostility towards HIV-positive persons,
exacerbating HIV-related stigma, and deterring HIV-positive status disclosure.
19
Opponents also point
out that most criminal HIV exposure laws do not account for scientifically supported risk levels
associated with the type of activity the offender engages in or any risk reduction measures. As a result,
these laws may criminalize behaviors the Center for Disease Control and Prevention (CDC) regards as
posing little or no risk for HIV transmission.
20
16
Centers for Disease Control and Prevention (CDC), HIV and STD Criminal Laws,
https://www.cdc.gov/hiv/policies/law/states/exposure.html (last visited Mar. 27, 2023).
17
Id.
18
Id.
19
C. Galletly, Z. Lazzarini, C. Sanders, and S.D. Pinkerton, Criminal HIV Exposure Laws: Moving Forward, AIDS and Behavior (June
2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4084714/ (last visited Mar. 27, 2023).
20
U.S. Department of Justice (DOJ), Best Practice Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported
Factors, https://www.hivlawandpolicy.org/sites/default/files/DOj-HIV-Criminal-Law-Best-Practices-Guide.pdf (last visited Mar. 27, 2023). STORAGE NAME: h0659a.CRJ PAGE: 4
DATE: 3/30/2023
In light of scientific advancements in HIV treatment and prevention, the United States Department of
Justice (DOJ) recommends that states reform HIV criminal exposure laws to eliminate HIV-specific
penalties, except when a person knows he or she is HIV-positive and:
Commits a sex crime with the risk of transmission (e.g., rape or other sexual assault); and
Evidence clearly demonstrates that the person intended to transmit HIV and the person’s
behavior posed a significant risk of transmission.
21
Florida Law
Sexual Conduct and Non-Disclosure
Under s. 384.24(1), F.S., a person commits a first degree misdemeanor if the person knows he or she
has a specified sexually transmitted infection (STI),
22
has been informed of the risk of transmission of
such STI through sexual intercourse, and has sexual intercourse with another person, unless that
person consented with knowledge of the diagnosis.
A person commits a third degree felony
23
if the person knows he or she has HIV, has been informed of
the risk of transmission through sexual intercourse, and has sexual intercourse with another person,
unless that person consented with knowledge of the diagnosis.
24
A person commits a first degree
felony
25
for a second or subsequent non-disclosure offense.
26
Conviction for a non-disclosure offense
does not require the intent to transmit or the actual transmission of HIV.
Florida law does not currently define “sexual intercourse.” However, the Florida Supreme Court has
defined sexual intercourse to include penile-vaginal penetration and acts of oral and anal intercourse.
27
Criminal Transmission of HIV
A person convicted of committing or attempting to commit a specified offense involving the transmission
of bodily fluids from one person to another must undergo HIV testing.
28
Specified offenses include:
29
Sexual battery;
30
Incest;
31
Lewd or lascivious offenses on a person under 16;
32
Assault
33
or aggravated assault;
34
Battery
35
or aggravated battery;
36
Child abuse
37
or aggravated child abuse;
38
Abuse of an elderly person or disabled adult
39
or aggravated abuse of an elderly person or
disabled adult;
40
21
Id.
22
See s. 384.24(1), F.S., for the list of included sexually transmitted infections which include gonorrhea, chlamydia, and syphilis, among
others.
23
A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. Ss. 775.082(3)(e) and 775.083(1)(c), F.S.
24
Ss. 384.24(2) and 384.34(5), F.S.
25
A first degree felony is punishable by up to 30 years imprisonment and a $10,000 fine. Ss. 775.082(3)(b)1. and 775.083(1)(b), F.S.
26
Id.
27
Debaun v. State, 213 So. 3d 747 (Fla. 2017).
28
S. 775.0877(1), F.S.
29
Id.
30
S. 794.011, F.S.
31
S. 826.04, F.S.
32
S. 800.04, F.S.
33
Ss. 784.011, 784.07(2)(a), and 784.08(2)(d), F.S.
34
Ss. 784.021, 784.07(2)(c), and 784.08(2)(b), F.S.
35
Ss. 784.03, 784.07(2)(b), 784.08(2)(c), F.S.
36
Ss. 784.045, 784.07(2)(d), and 784.08(2)(a), F.S.
37
S. 827.03(2)(c), F.S.
38
S. 827.03(2)(a), F.S.
39
S. 825.102(1), F.S.
40
S. 825.102(2), F.S. STORAGE NAME: h0659a.CRJ PAGE: 5
DATE: 3/30/2023
Sexual performance of a minor;
41
Prostitution,
42
Human trafficking;
43
and
Donation of blood, plasma, organs, skin, or other human tissue by a person with HIV under
specified circumstances.
44
A person who tests positive for HIV following a conviction for a specified offense, who is informed of the
result, and who later commits another specified offense involving the transmission of bodily fluids
commits criminal transmission of HIV, a third degree felony punishable by up to five years
imprisonment and a $5,000 fine.
45
An offender may be convicted of and sentenced separately for
criminal transmission of HIV and for the underlying offense.
46
A conviction for criminal transmission of
HIV does not require the intent to transmit or the actual transmission of HIV.
47
Court-Ordered Hepatitis and HIV Testing
At the request of a victim,
48
a court must order an offender charged with the commission of a specified
offense to undergo Hepatitis and HIV testing if the offense:
Involves the transmission of bodily fluids from one person to another;
49
or
Is a sexual offense and the victim was a minor, a disabled adult, or an elderly person.
50
The specified offenses are all the offenses that form the basis for a conviction of criminal transmission
of HIV, except human trafficking, and include donation of blood, plasma, organs, skin, or other human
tissue by a person with HIV under certain conditions.
51
41
S. 827.071, F.S.
42
Ss. 796.07 and 796.08, F.S.
43
Ss. 787.06(3)(b), (d), (f), and (g), F.S.
44
S. 381.0041(11)(b), F.S.
45
S. 775.0877(3), F.S.
46
Id.
47
S. 775.0877(5), F.S.
48
A request may also come from a victim’s legal guardian or the parents of a minor victim.
49
S. 960.003(2)(a), F.S.
50
S. 960.003(2)(b), F.S.
51
Id. STORAGE NAME: h0659a.CRJ PAGE: 6
DATE: 3/30/2023
Blood, Organ, and Tissue Donation
Due to increased life expectancy, the number of HIV-positive persons in need of organ transplants has
increased.
52
However, the number of people on the organ transplant waiting list far outweighs the
number of available organs.
53
This shortage disproportionately affects persons with HIV, who have a
higher mortality rate than persons without HIV on the organ transplant waiting list.
54
For decades, federal law prohibited persons with HIV from donating organs for transplantation, even to
HIV-positive recipients.
55
However, in 2013, the HIV Organ Policy Equity (HOPE) Act legalized HIV-
positive organ donations for transplantation into HIV-positive candidates under approved research
protocols designed to evaluate the feasibility, effectiveness, and safety of such organ transplants.
56
Although authorized by federal law, it is a third degree felony in Florida for an HIV-positive person to
donate blood, plasma, organs, skin, or other human tissue when he or she knew of the HIV infection
and was informed that transmission could occur through such donation.
57
Florida prohibits HIV-positive
persons from donating human tissue to other HIV-positive recipients or as part of a clinical research
study.
58
DOH Rules
DOH promulgates rules regulating STI testing, confidentiality of information, disease reporting,
quarantine orders, and notification requirements.
59
A person who violates DOH rules related to STIs
60
is
subject to a $500 fine for each violation.
61
DOH can impose the fine in addition to other penalties
provided by ch. 384, F.S.
62
Effect of the Proposed Changes
Sexual Conduct and Non-Disclosure
CS/HB 659 amends ss. 384.24 and 384.34, F.S., to reduce the criminal penalty for engaging in sexual
conduct while knowingly HIV-positive without the informed consent of the person’s sexual partner from
a third degree felony to a first degree misdemeanor. As such, under the bill the penalty for engaging in
sexual conduct without disclosing an HIV diagnosis is the same as the penalty for engaging in sexual
conduct without disclosing a diagnosis for other enumerated STIs. The bill replaces the term “sexual
intercourse” with the term “sexual conduct” which is defined as conduct between persons, regardless of
gender, which is capable of transmitting a sexually transmissible disease, including, but not limited to,
contact between a:
Penis and a vulva or an anus; or
Mouth and a penis, a vulva, or an anus.
The bill requires the state to prove that the offender engaged in sexual conduct that imposed a
substantial risk of transmission of HIV or another specified STI when the other person was unaware of
52
Christine Durand, M.D., The Transformation of Transplantation, HIV Specialist (July 2018), https://aahivm.org/wp-
content/uploads/2018/07/FINALHIVspecialist_July2018FINAL-1.pdf (last visited Mar. 27, 2023).
53
Id.
54
Id.
55
UNOS, At Two Years, HOPE Act Still Offering Hope, https://unos.org/at-two-years-hope-act-still-offering-hope/ (last visited Mar. 27,
2023).
56
Id.
57
S. 381.0041(11)(b), F.S.
58
Id.
59
R. 64D-3, F.A.C.
60
For example, r. 64D-3.029, F.A.C., requires practitioners, hospitals, and laboratories to report to DOH diseases or conditions
identified by DOH as being of public health significance, including HIV, within specified timeframes.
61
S. 384.34(4), F.S.
62
Id. Other penalties include criminal misdemeanor penalties for violations of s. 384.29, F.S., relating to the confidentiality of
information and records held by DOH, and for violations of s. 384.26, F.S., relating to the confidentiality of information gathered by DOH
during an investigation into the source and spread of an STI. STORAGE NAME: h0659a.CRJ PAGE: 7
DATE: 3/30/2023
the HIV or specified STI diagnosis. The bill defines “substantial risk of transmission” as a reasonable
probability of disease transmission as proven by competent medical evidence.
The bill amends s. 384.34, F.S., which authorizes an offender who commits multiple violations of
engaging in sexual conduct without disclosure of a person’s STI or HIV diagnosis to be convicted of a
third degree felony.
Finally, the bill deletes the $500 civil penalty for violating DOH rules regarding STIs.
Criminal Transmission of HIV
The bill amends s. 775.0877, F.S., to reduce the penalty for criminal transmission of HIV from a third
degree felony to a first degree misdemeanor.
The bill also removes any conviction for an offense or an attempt to commit an offense involving the
transmission of saliva from the requirement for the court to order the offender to undergo HIV testing
upon his or her conviction. Additionally, the bill removes a violation of s. 381.0041(11)(b), F.S., relating
to the donation of blood, plasma, organs, skin, or other human tissue from the list of specified offenses
in s. 775.0877, F.S., for which a court must order the offender to submit to HIV testing upon his or her
conviction. As a result, a person convicted of donation of human tissue by an HIV-positive person does
not have to submit to HIV testing, and a second or subsequent offense would not constitute criminal
transmission of HIV.
Court-Ordered Hepatitis and HIV Testing
The bill amends s. 960.003, F.S., to remove a violation of s. 381.0041(11)(b), F.S., relating to the
unlawful donation of blood, plasma, organs, skin, or other human tissue by an HIV positive person, from
the list of offenses for which a court may order the offender to submit to Hepatitis and HIV testing at a
victim’s request if:
The offense involves the transmission of bodily fluids from one person to another; or
The offense is a sexual offense and the victim was a minor, a disabled adult, or an elderly
person.
As such, an offender committing unlawful donation of blood, plasma, organs, skin, or other human
tissues would not be subject to court-ordered Hepatitis or HIV testing at the request of a victim under
this section. However, the donated tissue would still be tested for STIs and other communicable
diseases.
63
Blood, Organ, and Tissue Donation
The bill amends s. 381.0041, F.S., to permit the donation of blood, plasma, organs, skin, or other
human tissue by a person with HIV if a licensed physician deems the donation medically appropriate.
This may authorize persons with HIV to donate human tissue to other persons with HIV and to
participate in clinical research trials authorized by the HOPE Act.
The bill also reduces the criminal penalty for the donation of blood, plasma, organs, skin, or other
human tissue by a person with HIV when not deemed medically appropriate by a licensed physician
from a third degree felony to a first degree misdemeanor.
The bill amends s. 921.0022, F.S., to conform the Criminal Punishment Code offense severity ranking
chart to remove a violation for s. 381.0041(11)(b), F.S., as the bill reduces the penalty for the offense to
a misdemeanor.
The bill provides an effective date of July 1, 2023.
63
S. 381.0041(1), F.S. STORAGE NAME: h0659a.CRJ PAGE: 8
DATE: 3/30/2023
B. SECTION DIRECTORY:
Section 1: Providing a short title.
Section 2: Amending s. 381.0041, F.S., relating to donation and transfer of human tissue; testing
requirements.
Section 3: Amending s. 384.23, F.S., relating to definitions.
Section 4: Amending s. 384.24, F.S., relating to unlawful acts.
Section 5: Amending s. 384.34, F.S., relating to penalties.
Section 6: Amending s. 775.0877, F.S, relating to criminal transmission of HIV; procedures; penalties.
Section 7: Amending s. 921.0022, F.S., relating to Criminal Punishment Code; offense severity
ranking chart.
Section 8: Amending s. 960.003, F.S., relating to Hepatitis and HIV testing for persons charged with or
alleged by petition for delinquency to have committed certain offenses; disclosure of results
to victims.
Section 9: Providing an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may have a negative indeterminate impact on prison beds, as it reduces the offense
severity of current felony offenses to misdemeanor offenses that do not carry prison sentences.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
The bill may have a positive indeterminate impact on jail beds, as it reduces the offense severity of
current felony offenses to misdemeanor offenses that may carry county jail sentences.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
STORAGE NAME: h0659a.CRJ PAGE: 9
DATE: 3/30/2023
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill removes DOH’s authority to promulgate rules regarding the enforcement of financial penalties
for violating rules related to STIs.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 29, 2023, the Criminal Justice Subcommittee adopted an amendment and reported the bill
favorably as a committee substitute. The amendment removed the requirement for the state to prove that a
person acted with the intent to transmit an STI or HIV and actually transmitted the disease in order to prove
a violation of s. 384.24, F.S., and also created a third degree felony for a second or subsequent violation of
s. 384.24, F.S.
This analysis is drafted to the committee substitute as passed by the Criminal Justice Subcommittee.