Key points
- MCL 333.5210 was amended by 2018 PA 537, effective March 28, 2019.[1][2]
- The statute has three levels: intercourse without disclosure with the specific intent that the other person contract HIV (felony); reckless disregard with transmission (felony); and reckless disregard without transmission (misdemeanor, up to 1 year).[1][3]
- A person who is adherent with an attending physician's treatment plan and has been medically suppressed per accepted medical standards "is not acting with reckless disregard."[4]
- The section refers only to HIV and only to anal or vaginal intercourse; it names no other infection and no other sexual act.[5]
- The statute states no penalty for its two felonies, and the benchbook applies Michigan's default felony penalty of up to 4 years, a fine of up to $5,000, or both.[6]
Michigan's HIV disclosure statute is MCL 333.5210, in the Public Health Code. As amended effective March 28, 2019, it applies to a person who knows he or she has HIV and engages in anal or vaginal intercourse without first informing the other person, and it grades the offense by the person's state of mind and by whether HIV was transmitted.[1][3] A person who is adherent to treatment and medically suppressed "is not acting with reckless disregard."[4]
This page sets out the current text, the three offense levels, the suppression provision, the penalties, and what the statute does not cover. It describes the law; it is not medical guidance.
What does MCL 333.5210 say now?
The section has four subsections. Each of the first three begins with "a person who knows that he or she has" HIV and involves intercourse "without having first informed the other person."[1][3]
| Subsection | Conduct | Level |
|---|---|---|
| (1) | Engages in anal or vaginal intercourse without first informing the other person, "with the specific intent that the uninfected person contract HIV" | Felony[1] |
| (2) | Without first informing the other person, engages in vaginal or anal intercourse and transmits HIV to an uninfected person, causing that person to become HIV positive; the statute says such a person "acts with reckless disregard" | Felony[3] |
| (3) | Without first informing the other person, engages in vaginal or anal intercourse and acts with reckless disregard but does not transmit HIV | Misdemeanor[3] |
| (4) | A person who is adherent with the treatment plan of an attending physician and has been medically suppressed per accepted medical standards | The statute says such a person "is not acting with reckless disregard"[4] |
The History line printed with the statute shows it was added in 1988, effective March 30, 1989, and amended by 2018 PA 537, effective March 28, 2019.[1]
What each element means
Knowledge
Every subsection applies to a person "who knows that he or she has" HIV.[1][3] The statute is written around a person's knowledge of his or her own status.
The act
The current text speaks of "anal or vaginal intercourse."[1] The benchbook explains that the 2019 amendment replaced the earlier term "sexual penetration" with those words.[2] The section's heading and its subsections name no other sexual act.[5]
Disclosure first
Each offense requires that the person acted "without having first informed the other person that he or she has HIV."[1][3] The benchbook reports a 1998 Court of Appeals decision, People v Jensen, stating that if a defendant admits being HIV infected and the other person consents to the physical contact despite the risks, there is no criminal liability.[7] The same decision said the statute does not require public disclosure of a person's HIV status; it concerns private disclosure to potential sexual partners.[7] Jensen was decided under the earlier wording, and the benchbook notes that the statute was amended after it was published.[7]
State of mind and result
The three levels differ in two ways. Subsection (1) requires "the specific intent that the uninfected person contract HIV."[1] Subsections (2) and (3) turn on "reckless disregard," and the difference between them is the result: transmission makes the offense a felony, and no transmission makes it a misdemeanor.[3]
The medical-suppression provision
Subsection (4) reads: "A person who knows that he or she has HIV who is adherent with the treatment plan of an attending physician and has been medically suppressed per accepted medical standards is not acting with reckless disregard."[4]
Three things can be said from the text alone.
- The provision has two parts joined by "and": adherence to an attending physician's treatment plan, and medical suppression per accepted medical standards.[4]
- Its stated effect is on "reckless disregard," the term used in subsections (2) and (3).[4][3]
- Subsection (1) uses a different mental state, specific intent, and subsection (4) does not mention it.[1][4]
The statute does not define "medically suppressed" or "accepted medical standards" within the section, and the sources reviewed for this guide include no Michigan appellate decision interpreting subsection (4). How those terms are proved in a particular case is not something this page can state.
What are the penalties?
| Offense | Maximum penalty | Source of the penalty |
|---|---|---|
| Subsection (1): specific intent | 4 years, a fine of $5,000, or both | Default felony penalty in MCL 750.503, as applied by the benchbook[6] |
| Subsection (2): reckless disregard, HIV transmitted | 4 years, a fine of $5,000, or both | Default felony penalty in MCL 750.503, as applied by the benchbook[6] |
| Subsection (3): reckless disregard, no transmission | 1 year, a fine of $1,000, or both | Stated in MCL 333.5210(3)[3] |
The reason for the two sources is that MCL 333.5210 calls subsections (1) and (2) felonies without stating a punishment. Michigan's Penal Code provides that a person convicted of a felony for which no punishment is specially prescribed is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000, or both.[6]
Unless MCL 767.24 sets a different period for an offense, charges must be filed within 6 years after the offense is committed.[8]
What the statute does not cover
Other infections. The section's heading is "Intercourse with specific intent or reckless disregard to infect with HIV," and every subsection is about HIV. It names no other sexually transmitted infection.[5] The belief that Michigan makes it a crime under this section to fail to disclose any sexually transmitted infection does not match its text.[5]
Other sexual acts. The section refers only to anal or vaginal intercourse.[5]
Public disclosure. As the benchbook describes the Jensen decision, the statute does not require a person to publicize his or her HIV status.[7]
These are statements about one section of the Public Health Code. This guide did not research whether other criminal statutes could be applied to conduct outside it, and it states no rule about that.
Related testing provisions
A different section of the Public Health Code deals with testing, not with disclosure between partners. Under MCL 333.5129(1), a person arrested and charged with certain prostitution-related offenses may, upon order of the court, be examined or tested for sexually transmitted infection, hepatitis B, hepatitis C, HIV infection or AIDS.[9] That provision is described in prostitution and solicitation laws. Medical care after an assault, including the forensic examination, is covered in the sexual assault forensic exam.
How this differs from criminal sexual conduct
MCL 333.5210 concerns intercourse without prior disclosure of HIV status.[1] It is separate from the criminal sexual conduct statutes, MCL 750.520b to 750.520e, which are Michigan's core sex offenses.[10] Those offenses are explained in the overview of criminal sexual conduct law and in consent under the CSC statutes. How the different legal labels fit together is covered in what counts as sexual misconduct under Michigan law.
What people get wrong
"Any sexual contact without disclosure is a felony." The current statute covers anal or vaginal intercourse, and the level of the offense depends on specific intent, reckless disregard and whether HIV was transmitted.[1][3]
"Treatment status is irrelevant." Since March 28, 2019 the statute has said that a treatment-adherent, medically suppressed person is not acting with reckless disregard.[4][2]
"The old case law still describes the statute." The benchbook itself flags that the statute was amended after the Jensen case was published.[7]
Dated changes to Michigan's sex offense laws are collected in the timeline of law changes, and other common misstatements in myths about Michigan sex crime law.
Common questions
Is it a crime not to tell a partner you have HIV in Michigan?
It can be, in the circumstances the statute lists. Under MCL 333.5210, a person who knows he or she has HIV and engages in anal or vaginal intercourse without first informing the other person commits a felony if acting with the specific intent that the other person contract HIV, a felony if acting with reckless disregard and HIV is transmitted, and a misdemeanor if acting with reckless disregard without transmission.[1][3] A medically suppressed, treatment-adherent person is not acting with reckless disregard.[4]
Does the law apply if the person is undetectable?
The statute does not use the word "undetectable." It says that a person who knows he or she has HIV, who is adherent with the treatment plan of an attending physician and has been medically suppressed per accepted medical standards, is not acting with reckless disregard.[4] By its words that provision speaks to the two reckless-disregard subsections; the specific-intent felony in subsection (1) is worded separately.[1][3]
Does Michigan's law cover other sexually transmitted infections?
MCL 333.5210 does not. Its heading and each of its subsections refer to HIV and to anal or vaginal intercourse, and the section names no other infection.[5] This guide did not research whether any other Michigan statute could apply to non-disclosure of another infection, so it states no rule on that point.
What is the penalty for violating Michigan's HIV disclosure law?
The misdemeanor in subsection (3) is punishable by up to 1 year in jail, a fine of up to $1,000, or both.[3] The two felonies have no penalty stated in the section. The benchbook applies MCL 750.503, the default for felonies with no specified punishment: up to 4 years in prison, a fine of up to $5,000, or both.[6]
What changed in 2019?
According to the Michigan Judicial Institute's benchbook, 2018 PA 537, effective March 28, 2019, amended the section to replace the term "sexual penetration" with anal and vaginal intercourse, to include acts of specific intent and reckless disregard, and to modify the penalties.[2] This guide did not read the pre-2019 text and gives no figures for the old law.
Sources
- MCL 333.5210(1) — Michigan Legislature
- SABB §3.20 fn 23; 2018 PA 537 — Michigan Courts
- MCL 333.5210(2)-(3) — Michigan Legislature
- MCL 333.5210(4) — Michigan Legislature
- MCL 333.5210 (catchline and subsections (1)-(4)) — Michigan Legislature
- MCL 333.5210(1)-(2); MCL 750.503 — Michigan Legislature
- Sexual Assault Benchbook §3.20(A)(4), (C), citing People v Jensen (On Remand), 231 Mich App 439, 455, 457-458, 461, 464-465 (1998) — Michigan Courts
- MCL 767.24(10)-(11) — Michigan Legislature
- MCL 333.5129(1); MCL 750.449a(1) — Michigan Legislature
- MCL 750.520b; MCL 750.520c; MCL 750.520d; MCL 750.520e(2) — Michigan Legislature
This page is general legal information about Michigan law, published by the office of Attorney Shawn Haff. It is not legal advice and reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts — check the sources linked above and talk to a licensed Michigan attorney about your situation. If you are in danger, call 911. The National Sexual Assault Hotline is 1-800-656-4673.