Now repealed, NRS § 201.358 was the Nevada law making it a category B felony for people who knew they are HIV-positive to solicit or engage in prostitution. The punishment included two to 10 years in prison and/or up to $10,000 in fines.
Instead under NRS § 441A.180, it is now a misdemeanor for anyone to engage in an occupation such as prostitution with the high probability of transmitting any communicable disease, such as HIV. Misdemeanors carry up to six months in jail and/or up to $1,000 in fines.
NRS 201.358 stated 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In this article, our Las Vegas criminal defense attorneys discuss this now repealed law:
- 1. What did NRS 201.358 do?
- 2. What were the Nevada penalties for prostitution with HIV?
- 3. Were there ways to fight the charges?
- 4. How soon can the criminal record be sealed?
1. What did NRS 201.358 do?
Normally prostitution – or the solicitation of prostitution – is only a misdemeanor in Nevada. But prior to NRS 201.358 being repealed, prostitution and solicitation became a felony if the sex worker or customer knew he or she had the AIDS virus HIV (human immunodeficiency virus).1
2. What were the Nevada penalties for prostitution with HIV?
People who knew they have HIV faced category B felony charges for engaging in prostitution (or solicitation of prostitution). The punishment was:
- 2 to 10 years in Nevada State Prison, and/or
- $10,000 in fines.2
3. Were there ways to fight the charges?
Yes. Depending on the facts of the case, six possible defenses to NRS 201.358 charges were:
- The defendant never tested positive for HIV.
- The defendant never received a notice with positive HIV test results.
- The defendant never engaged in an act of prostitution.
- The defendant never offered or agree to engage in an act of prostitution.
- The prostitution or solicitation occurred before the defendant received notice about being HIV positive.
- The police entrapped the defendant.3
Note that it was 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 was a crime.
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).
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.
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.
- SB 275 (2021). NRS 201.358 – Engaging in prostitution or solicitation for prostitution after testing positive for exposure to human immunodeficiency virus: Penalty; definition. Glegola v. State, (1994) 110 Nev. 344, 871 P.2d 950, 110 Nev. Adv. Rep. 43.
- Foster v. State, (2000) 116 Nev. 1088, 1092-1093, 13 P.3d 61, 64.
- NRS 179.245. NRS 179.255.