NRS 201.358 – Engaging in Prostitution after Testing Positive for HIV

NRS 201.358 is the Nevada law making it a category B felony for people who know they are HIV-positive to solicit or engage in prostitution. The punishment includes two to 10 years in prison and/or up to $10,000 in fines.

NRS 201.358 states that:

1. A person who:
(a) Violates NRS 201.354 or section 2 of this act; or
(b) Works as a prostitute in a licensed house of prostitution, after testing positive in a test approved by the State Board of Health for exposure to the human immunodeficiency virus and receiving notice of that fact 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. As used in this section, “notice” means:
(a) Actual notice; or
(b) Notice received pursuant to NRS 201.356.

In this article, our Las Vegas criminal defense attorneys discuss:

• 1. What does NRS 201.358 do?
• 2. What are the Nevada penalties for prostitution with HIV?
• 3. Are there ways to fight the charges?
• 4. How soon can the criminal record be sealed?

1. What does NRS 201.358 do?

Normally prostitution – or the solicitation of prostitution – is only a misdemeanor in Nevada. But prostitution and solicitation become a felony if the sex worker or customer knew he or she had the AIDS virus HIV (human immunodeficiency virus).¹

NRS 201.358 makes it a felony to knowingly engage in prostitution with HIV.

2. What are the Nevada penalties for prostitution with HIV?

People who know they have HIV face category B felony charges for engaging in prostitution (or solicitation of prostitution). The punishment is:

• 2 to 10 years in Nevada State Prison, and/or
• $10,000 in fines.²

3. Are there ways to fight the charges?

Yes. Depending on the facts of the case, six possible defenses to NRS 201.358 charges are:

1. The defendant never tested positive for HIV.
2. The defendant never received a notice with positive HIV test results.
3. The defendant never engaged in an act of prostitution.
4. The defendant never offered or agree to engage in an act of prostitution.
5. The prostitution or solicitation occurred before the defendant received notice about being HIV positive.
6. The police entrapped the defendant.³

Note that it is not a defense to prostitution with HIV charges if:

• no sex acts took place,
• no money changed hands,
• the parties used a condom,
• the sex worker was a licensed brothel prostitute,
• no HIV was transmitted, or
• both parties knew about the defendant’s HIV status.

Merely offering or agreeing to engage in prostitution with the knowledge of being HIV positive is a crime.

4. How soon can the criminal record be sealed?

A Nevada conviction for engaging in prostitution after being notified of being HIV positive is sealable five years after the case ended. But there is no waiting period to pursue a seal if the charge gets dismissed.⁴

Learn how to seal Nevada criminal records.

The penalty for solicitation while knowingly HIV-positive includes two to 10 years in prison and/or up to $10,000 in fines.

5. Related offenses

5.1. Open and gross lewdness

Open and gross lewdness (NRS 201.210) is engaging in sexual acts where the public can observe, or groping another person without consent. A gross misdemeanor, open and gross lewdness carries up to 364 days in jail and/or up to $2,000 in fines. The defendant will also have to register as a sex offender (NRS 179D).

5.2. Trick-rolling

Trick-rolling occurs when sex workers steal money or other valuables from their customers. If the sex worker used threats or force, the D.A. would bring robbery (NRS 200.380) charges. If there was no force or threats, then prosecutors would instead press charges for larceny from a person (NRS 205.270). In either case, defendants would face prison and/or fines.

5.3. Battery

Battery (NRS 200.481) is inflicting unlawful physical force on another person. Battery can be charged as a misdemeanor or a felony depending on whether the battery caused substantial bodily harm (NRS 0.060).

5.4. Sexual assault

Sexual assault (NRS 200.366) is non-consensual penetrative sex. Penalties include up to life in prison plus sex offender registration.

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