Constitutional Challenges to the Criminalization of Same-Sex Sexual Activities: State Interest in HIV-AIDS Issues

70 Denv. U. L. Rev. 337 (1993)

25 Pages Posted: 18 Apr 2013

Date Written: July 1, 2013


As the most-litigated disease in our nation's history, Human Immunodeficiency Virus-Acquired Immune Deficiency Syndrome (HIV-AIDS) frequently challenges the courts to separate reasoned arguments from arguments based on misinformation, prejudice and hysteria. One major national study concluded that society subjects people affected by HIV-AIDS to discrimination in employment, health care, insurance, and criminal law.

The stigma of HIV disease has particularly harsh consequences when criminal penalties are at stake. Controversial results abound in criminal prosecutions of HIV-positive defendants. One state court reinstated a conviction for attempted murder based upon the defendant's spitting and throwing of blood. A federal appeals court held that the bite of an HIV positive person constituted use of a "deadly and dangerous" weapon in an assault prosecution. In other cases, criminal defendants diagnosed or merely perceived as HIV-positive were subject to irrational and humiliating courtroom treatment.

Constitutional challenges to criminal sodomy laws provide a valuable setting for assessing the rationality of judicial response to HIV-AIDS issues. In particular, homosexuals' legal challenges to these laws' proscriptions of private, noncommercial, consensual, same-sex sexual activities raise two of the most provocative issues of our time: preventing the spread of HIV-AIDS and protecting the right to privacy in intimate acts. Courts face difficulty in resolving these challenges when supporters and opponents of same-sex sodomy statutes raise emotionally charged HIV-AIDS issues linked to a variety of complex medical, social and psychological concerns. The effect of these arguments on courts and on legislatures is profound. As one commentator noted: "The trend towards decriminalization of gay sex has been halted by AIDS ...."

This article examines arguments employing HIV-AIDS as a basis for justifying the criminalization of same-sex sexual activities. The article concludes that such arguments are irrational, and indeed fly in the face of accepted scientific evidence.

Keywords: HIV-AIDS, rational basis, sodomy, LGBTrights, gay rights

Suggested Citation

Strader, Kelly, Constitutional Challenges to the Criminalization of Same-Sex Sexual Activities: State Interest in HIV-AIDS Issues (July 1, 2013). 70 Denv. U. L. Rev. 337 (1993). Available at SSRN:

Kelly Strader (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
213-738-6753 (Phone)
213-738-6698 (Fax)


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