NRS § 441A.180 makes it a misdemeanor in Nevada to behave with a “high probability” of transmitting a communicable disease to someone else after a health care provider gave you a written warning. It is also a misdemeanor to intentionally transmit a communicable disease to someone else.
The penalties for violating NRS 441A.180 include up to six months in jail and/or $1,000 in fines.
Examples of prohibited behavior may include:
- Having unprotected sex with the intent of transmitting your herpes to your partner, and they get it;
- Sharing needles when you know you have HIV, and a nurse warned you in writing against it; or
- Participating in a boxing match when you know hepatitis B, and a doctor warned you in writing against it.
The following bubble graph shows common examples of communicable diseases:
In this article, our Las Vegas criminal defense attorneys discuss the following topics re. NRS 441A.180:
1. Elements
As discussed below, there are two ways of violating NRS 441A.180 in Nevada.
1) Risky Behavior after a Doctor’s Note
One way you can be convicted of violating NRS 441A.180 is for Nevada prosecutors to prove beyond a reasonable doubt that:
- You had a communicable disease in an infectious state; and either
- You conducted yourself in a manner that had a high probability of transmitting it to another person; or
- You engaged in an occupation in which there was a a high probability that the disease would be transmitted to someone else; AND
- You acted this way after a health care provider notified you in writing of your risky behavior and how to stop it.
Therefore, it is irrelevant if no one else catches the disease. Merely acting in a way with a “high probability” of transmitting the disease is illegal.
Note it is not an NRS 441A.180 violation if you tested positive for a communicable disease and then became pregnant or donated (or attempted to donate) either:
- an organ,
- blood,
- sperm, or
- tissue.1
2) Intentional Transmission
The second way you can be convicted of violating NRS 441A.180 is for Nevada prosecutors to prove beyond a reasonable doubt that:
- You were notified that you tested positive for a communicable disease,
- Afterwards, you intentionally acted in a way that has a high probability of transmitting it to someone else,
- You intended to transmit the disease by your behavior, and
- Your behavior caused the person to get the disease.
Therefore in this scenario, intentionally trying to infect someone else is a crime only if the victim gets infected.
Note you cannot be deemed to have acted “intentionally” just because you failed to use means to prevent transmission. For example, not using a condom during sex is insufficient evidence by itself to prove you intentionally tried to give your partner HIV.2
2. Penalties
Violating NRS 441A.180 is a misdemeanor in Nevada carrying:
- up to 6 months in jail and/or
- up to $1,000 in fines.
However, before a court imposes either of these sentencing terms, it must consider all alternative means to advance the public health. An example could be ordering you to complete an online AIDS Awareness class.3
Note that prior to NRS 441A.180 becoming law in 2021, Nevada followed the since-repealed NRS 201.205. This statute made the intentional transmission of HIV a serious felony.
3. Defenses
NRS 441A.180 spells out two defenses that could get this charge dismissed in Nevada.
The first defense is that you used (or attempted to use) a means to prevent the transmission of your communicable disease. This way, the D.A. may be unable to prove you acted in “intentionally” or with a “high probability” of exposing others.
The second defense is that the person exposed to your communicable disease:
- knew you had it,
- knew the conduct could result in its transmission, and
- consented to the conduct with that knowledge.4
This way, the risky acts of consensual adults cannot be criminalized.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Apprehending the Weapon Within: The Case for Criminalizing the Intentional Transmission of HIV – American Criminal Law Review.
- Criminalizing Consensual Transmission of HIV – University of Chicago Legal Forum.
- Death at First Bite: A Mens Rea Approach in Determining Criminal Liability for Intentional HIV Transmission – Arizona Law Review.
- AIDS: Malpractice and Transmission Liability – University Colorado Law Review.
- Interspousal Tort Liability for Infliction of a Sexually Transmitted Disease – Journal of Family Law.
Legal References
- NRS 441A.180. Contagious person to prevent exposure to others; warning by health authority; penalties; affirmative defenses; acts that do not violate section; prohibition on charging person with other offenses.
1. Except as otherwise provided in this section, a person who has a communicable disease in an infectious state shall not:
(a) Conduct himself or herself in any manner that has a high probability of transmitting the disease to another person; or
(b) Engage in any occupation in which there is a high probability that the disease will be transmitted to other persons.
2. Except as otherwise provided in this section, a health authority who has reason to believe that a person is in violation of subsection 1 shall issue a warning to that person, in writing, informing the person of the behavior which constitutes the violation and of the precautions that the person must take to avoid exposing another person to the disease. The warning must be served upon the person by delivering a copy to the person. The health authority shall not warn a person against:
(a) Engaging in an occupation if the employer of the person would be prohibited from preventing the person from engaging in that occupation by the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., or NRS 613.330.
(b) Accessing a place of public accommodation if the place of public accommodation would be prohibited from denying the person access to the place of public accommodation by the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., or NRS 651.050 to 651.120, inclusive.
3. Except as otherwise provided in this section, a person who violates the provisions of subsection 1 after service upon the person of a warning from a health authority in the manner prescribed by subsection 2 is guilty of a misdemeanor.
4. Except as otherwise provided in this section, any person who, after receiving notice that he or she has tested positive for a communicable disease, intentionally conducts himself or herself in a manner that is specifically intended to transmit the disease to another person and has a high probability of transmitting the disease to another person and, as a consequence, transmits the disease to another person is guilty of a misdemeanor. A person shall not be deemed to have acted intentionally solely because the person failed to use or attempt to use means to prevent transmission.
5. It is an affirmative defense to an offense charged pursuant to this section that a person who was subject to exposure to a communicable disease as a result of conduct prohibited by a warning issued pursuant to subsection 2 or conduct described in subsection 4:
(a) Knew the defendant had the communicable disease;
(b) Knew the conduct could result in the transmission of the communicable disease; and
(c) Consented to engage in the conduct with that knowledge.
6. It is an affirmative defense to an offense charged pursuant to this section that the defendant used or attempted to use means to prevent the transmission of the communicable disease.
7. A person who has tested positive for a communicable disease is not in violation of subsection 1 or 4 because the person:
(a) Donates or attempts to donate an organ, blood, sperm or tissue and thereby exposes another person to the communicable disease or transmits the communicable disease; or
(b) Becomes pregnant and exposes the unborn child to the communicable disease or transmits the communicable disease to the unborn child.
8. Before imposing a fine or a sentence of imprisonment upon a person who violates subsection 3 or 4, a court must consider all alternative means to advance the public health.
9. A person must not be charged for any offense other than the offenses set forth in this section if the person is alleged to have exposed another person to a communicable disease or attempted to expose another person to a communicable disease. The fact that a person has a communicable disease must not be used to satisfy any element of an offense other than the offenses set forth in this section.
10. For the purposes of subsections 1 and 4, the likelihood of transmitting a communicable disease to another person must be determined using current medical or epidemiological evidence. The Board shall adopt regulations prescribing requirements for determining the sufficiency and legitimacy of medical or epidemiological evidence pursuant to this subsection.
11. As used in this section, “means to prevent transmission” means any method, device, behavior or activity scientifically demonstrated to measurably limit, reduce or eliminate the risk of transmitting a communicable disease.
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