AIDS/HIV | Ari Ezra Waldman | Crime | News

Stop, or My HIV Will Shoot

Weapon_hiv

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing bi-weekly posts on law and various LGBT issues.

We greet every baby step toward a cure or vaccine for HIV with cautious optimism. But, as with any scientific development, the law has yet to catch up.

Unfortunate stories like this happen too often. Once is too often. It involves an HIV-positive individual having unprotected sex with an unwitting partner who is unaware of the former's HIV status. In this particular case, the victim was underage, which raises certain issues I do not address here.) It happens, and people get thrown in jail for committing the crime of aggravated assault.

Assault is a run-of-the-mill confrontation where you "put someone in apprehension of imminent harm." Huh? What the frak is that? It's like when Nelson, Jimbo, Dolph and Kearney pull their hands back, clench their fists and demand Bart Simpsons's lunch money. It makes Bart fear that he's about to be hit. And, in real life, it is typically treated as a misdemeanor, or a low-grade violation, like public intoxication, disorderly conduct or reckless driving (or, everything Homer Simpson does on a regular basis coming home from Moe's). Punishments range from fines to a few days or months in a local jail.

Having unprotected sex without telling your partner you are HIV-positive is treated as an aggravated assault, which is "attacking someone with a means likely to cause grievous bodily harm or death." The definitions vary from jurisdiction to jurisdiction, but, at their core, aggravated assaults involve weapons that can kill. Once again, The Simpsons provides another perfect example: Itchy, the homicidal mouse in the show's cartoon parody, commits aggravated assault every time he ties Scratchy, the embattled cat, to a nuclear bomb or lunges at him with the 1,000 knives he keeps in his pocket.

In real life, the two assaults are distinguished by the weapon. Your fists allow you to commit simple assault, whereas a loaded gun lets you commit aggravated assault.

While modern treatments allow HIV-positive individuals the opportunity to lead health lives, there is still no cure for AIDS and, at a minimum, a diagnosis -- like that of any incurable disease -- changes your daily life, your prognosis and your options. HIV can still cause death. So, the law treats it as a "means likely" to cause death.

But should it?

Here are just some of the arguments that it should not:

Scientific advancements have now made the aggravated assault label obsolete. There may be no cure, but modern medical treatments have made HIV a manageable condition, like relapsing-remitting MS or Crohn's Disease.

HIV is a disease, and thus incomparable to picking up a gun or a lead pipe or an axe to kill someone. Whereas the medical advancement argument suggests that HIV did once belong in the aggravated assault list, this argument says that it never should have been considered like a gun or knife or axe from the beginning.

Which do you think is more persuasive?

Continue reading "Stop, or My HIV Will Shoot", AFTER THE JUMP...


I say neither. The morality argument ignores the reality of decimated gay communities in the 1980s and the ethical minefield of hiding one's HIV status. Furthermore, the medical argument is incomplete. It is true that living with HIV is not what it was in 1985. For one thing, "living with HIV" was a rare and wonderful gift back then. Today, it is a much more common (yet still wonderful) reality. But as long as there is no cure and as long as daily medications will be necessary, an HIV-positive diagnosis is not something to take lightly. It can still kill you.

But, let's not toss the medical argument away entirely. While it may not save all HIV-positive defendants in this situation, there is no reason why every HIV-positive defendant accused of having unprotected sex with an unwitting partner should be treated the same. Here is where the medical advancement argument makes sense today.

We have new and better tests, some of which measure an individual's viral load, which can determine the likelihood that HIV will become AIDS or be transmitted to another person.

The viral load test has allowed us to distinguish one HIV-positive individual from another with even greater specificity. During treatment and monitoring, a high viral load can be anywhere from 5,000 to 30,000 copies/mL, indicated progression of the disease and a high likelihood of transmission. A low viral load is usually between 40 to 500 copies/mL. This result indicates that HIV is not actively reproducing and that the risk of disease progression is low. A viral load result that reads "undetectable" does not mean that you are cured, but it may mean that either the HIV RNA is not present in your blood at the time of testing.

Remember what an aggravated assault was? Attacking someone with the means likely to cause grievous bodily harm or death. It's pretty darn likely that Itchy is going to chop up Scratchy into little pieces when he attacks him with his 1,000 kitchen knives. In fact, Scratchy is going to be really harmed 100% of the time, something the prosecution would be able to prove at trial. (Can you imagine ever bringing Itchy to trial for what he's done to Scratchy?). But, the likelihood that HIV will transmit from one person to another depends on the viral load. A high viral load results in a greater likelihood of transmission; an undetectable viral load means a significantly lower likelihood of transmission. That is important evidence when determining if the prosecution has proven every element of the aggravated assault offense. And, yet, that type of so-called "newfangled science" has not yet been accepted as determinitive of the likelihood element of the aggravated assault offense.

And what about the cause element?  Here, defense attornies should be allowed to admit the medical advancement evidence discussed above. HIV is manageable and even if transmitted, it is no longer a death sentence.

Yet, in case after case out of various jurisdictions -- including Michigan, Alabama, the United States military and others -- proof that the defendant is HIV-positive is evidence enough. As far as the law is concerned, HIV is always active, always transmitting and also deadly. The scientific community knows that is not the case, the thriving HIV-positive community knows that is not the case, and we know that is not the case. And, soon enough, the law will too.

(For those in the biz or just interested in this stuff, watch out for a law review article I will publish on this very topic in the coming months. More info forthcoming.)

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Comments

  1. I don't think the availability of medical treatment for the victim is relevant. That assumes the victim has the means to access said treatment, and having to undergo treatment for the rest of your life still is 'harm' to me. However I also think the victims attempt to learn his/her partner’s status should also play into the equation.

    Posted by: G | Aug 26, 2010 10:49:10 AM


  2. ...how about making it your own responsibility to protect yourself before having sex?

    Posted by: yeahisaidit | Aug 26, 2010 10:58:13 AM


  3. Gay men need to stop pretending HIV and AIDS are simply "manageable illnesses". Anyone who knows someone who is HIV+ or has AIDS knows the regimen of pills they have to take, the illnesses they have to deal with, the drug side effects, etc. We've done such a good job not marginalizing people who are positive that we have marginalized the reality of the virus. –from Mark

    The reality is if I test you on any given Tuesday and you are negative that means NOTHING…I would have to put you in solitary confinement, come back in 3-6 months and test again as so to ensure that there are no antibodies present but the essential point is that you have NOT had sexual contact with anyone.

    It is sad that this key point has not been touted, practiced and exclaimed by the larger gay community and gay media when considering HIV status.

    Too many gay men are completely clueless in regards to their status and it is EASIER to say or click the box negative or avoid it ALL together…than have the conversations that need to go on.

    OK I will say it bareback sex feels GREAT however consider the following: that 20 minutes of bareback could place you on 20 years of medication. There is no denying these realities; while the medication is helpful there is a backlash in the gay community because of the perception of being HIV+.

    Those gay men online with Grindr, Manhunt, Adam4Adam, RealJock, Gay.com, Friendster, and other venues to meet up from bars to bathhouses see how HIV+ men are treated and/or talked about. With this knowledge of possible isolation and denial of sex some gay men will not get tested.

    Also these laws are pushing more gay men from testing. If I do not know then I do not know and therefore I am not responsible for this.

    Many in the gay community see HIV as preventable and IT IS but please remember we are all having SAFER SEX; condom usage is VITAL to this.

    Here are some of my thoughts:

    1. I think EVERY gay man should have an answer regarding whether or not they will have sex or date a HIV+ person. I would never try to convince someone as it is your decision but you should have a solid answer. When you ignore or someone discloses they are HIV+ you should have the ability to talk about your viewpoints and whether or not you want to proceed. This is a powerful piece of yourself that you share with someone else. It is odd that many gay men know ALL of their sexual fetishes but this little consideration has been ignored.

    2. Consider changing the language like I am clean UB2; some HIV+ men are caused to further hide their status or simply not get tested. You can NO longer tell if someone is HIV+ and many gay men do not tell even their closest friends about their health status because too many gay men are not discreet. Also there are portions of the gay community that do not test as it is easier to state that they are negative. Sure their last test was negative but it was 9 months ago or maybe even 3 years.

    3. The #1 reason most men are HIV+ is TRUST sure it is misplaced TRUST but there it is. You say I am negative and then it is happy trails down the unsafe sex lane. It just should not be that easy to be convinced about someone's status.

    4. Bareback videos whether people want to acknowledge them or not cause many HIV- and HIV+ men to formulate an opinion about bareback sex.

    a. HIV- men may see HIV+ men as "slutty"

    b. HIV+ men may see these actions as a measuring stick on how to behave sexually.


    Of course this does not apply to all men but there needs to me more talk about this.


    Posted by: True Words | Aug 26, 2010 11:11:52 AM


  4. All good arguments for your defense in a court of law. Protect yourselves people. BB is not wise and if you play that way you can get a hell of a lot of disease, not the least HIV.

    Posted by: Dave | Aug 26, 2010 11:12:39 AM


  5. Well put, G and True Words. We aren't all middle- to upper-middle-class folks with tons of disposable income and access to big-city resources. HIV diagnosis may not be an immediate death sentence anymore, but living with it requires a lot of work--and a lot of drugs with a lot of side effects. Having unprotected sex when you know you're positive is irresponsible and, I think, has to have something of an intent to do harm (the "someone gave this to me, so I'm going to hurt someone else" motive).

    That said, while I by no means think positive people should be forced to disclose, it's negative folks' responsibility to have protected sex, too. So it's certainly not a single-sided coin. I don't believe for a second that pointing the finger at barebackers who contract HIV is victim-blaming (though sex with a minor or someone with impaired judgment brings up a whole bunch of other issues).

    Posted by: Nick | Aug 26, 2010 11:15:05 AM


  6. Well, as much as everybody needs to protect themselves, it is still not ok to bareback someone without telling them you are HIV+. I have known more than one positive guy who made a relative habit of it, and I always made it a point to not go out with him and tell everyone in his sight about it. Maybe that makes me an asshole, but whatever. Don't be an asshole and I won't.

    I have always wondered if there was some some kind of HIV 'paternity' test you could take to verify it was a certain somebody who infected you. At least then in these cases perhaps the infecter, assuming he knew he was positive, could perhaps be legally induced to pay for his meds. Something tells me a lot of slutty poz guys would be a lot less reckless if it meant large fractions of their wage being garnished for their ho alimony. Less money for drugs, drinks, and poppers after all. Ugh.

    (Not all positive guys are like that, but the ones here in NYC certainly seem to be. And I imagine in other urban areas as well. Stereotypes exist for a reason.)

    Posted by: Ugh | Aug 26, 2010 11:20:28 AM


  7. So how does this play out in cases of food poisoning? It is known that vaccinating hens for salmonella has cut the transmission of that disease in the UK by 97%. Yet the US doesn't require it. About half of the egg farms do it on their own. Should the other half be held liable and even criminally negligent since they willingly forgo an action which they know will help protect consumers from a possibly life threatening disease? Given the SCOTUS's ruling that Corporations have all the rights of individuals... Now that we all have stopped laughing about Corporations being held criminally liable. I do think the question of whether the person lied about their status when asked is salient. If the victim did not ask or try to have protected sex then they should have no case.

    Posted by: pete | Aug 26, 2010 11:21:31 AM


  8. The people who advance the first two arguments (i.e., that HIV isn't "deadly"), are usually HIV+ people who are trying to promote this idea that HIV is no big deal. They do this because they don't want to feel like a diseased, damaged, infected being.

    Unfortunately for them, HIV is still extremely damaging and no amount of wishful thinking is going to convince the public or the medical community that HIV is "no big deal."

    We should prosecute EVERY one of these cases.

    Posted by: Royy | Aug 26, 2010 11:30:05 AM


  9. Robber shoots man with gun.

    Robber is arrested and charged with attempted murder.

    Robber says in court, "What's the big deal? There was a trauma center nearby! With the latest ER technology, gun shot wounds aren't nearly as deadly as they used to be."

    Think he's going to be acquitted?

    Posted by: Royy | Aug 26, 2010 11:33:44 AM


  10. It should be a crime to openly lie about your HIV status to a sex partner, especially if that lie induces the person to engage in risky behavior. But when someome remains silent, while I disagree with that as well, I do think you need to also look at the partner and his level of responsibility. HIV has been around for almost 30 years now, and it is a known risk of having unprotected sex. When you meet someone and have sex (especially unprotected anal) with them without being overly concerned about their HIV status ("he looks healthy enough to me"), you can't really complain if the risk turns out to become a reality. I don't mean to sound harsh, but just as it is wrong not to disclose what you know, it is wrong to totally blame someone else when you didn't even ask the question or worry enough about the risks.

    Posted by: Bill | Aug 26, 2010 11:33:57 AM


  11. The viral load argument sounds akin to an unloaded weapon, or a shoddy shooter at a far distance. In many states, an unloaded gun is still considered a deadly weapon.

    There's also the fact that only a minority of gunshot wounds (not even counting missed shots) are fatal. http://www.hno.harvard.edu/gazette/2000/09.28/firearms.html Out of about 65,000 gunshot wounds each year, 30,000 are fatal. That includes intentional suicides, which likely have a higher percentage of fatality. Thus, it's probably more like 30% of gunshots wounds that prove fatal.

    Posted by: Brian | Aug 26, 2010 11:39:31 AM


  12. Good points, guys. Treating HIV like it's "no big deal" is one of the reasons that HIV is on the rise again. And not disclosing your status absolutely is intent to harm -- premeditated, sometimes.

    Posted by: Billy | Aug 26, 2010 11:44:14 AM


  13. The one thing that makes me think that aggravated assault is the incorrect sentence is that unless it's a rape case the person on the receiving end is willingly and knowingly putting themselves at risk.

    I think that a different category somewhere between assault and aggravated assault is in order for people who lie about or don't disclose their status.

    Posted by: Randy | Aug 26, 2010 12:11:03 PM


  14. The difference between MS/Crohns Disease and HIV is that you don't get MS and Crohns Disease from a lying sexual partner who is aware he is transmitting a potentially fatal disease to you.

    If you did, I'd say their manageability is no less persuasive for an aggravated assault charge under that fact pattern. There is no requirement under assault that the action will certainly result in death (though many would argue being infected with HIV is still a death sentence, though one that lasts a lot longer). So I can't see how having the ability to manage HIV infections makes it any less of an effective death sentence. People with HIV are generally not living to 90 and dying of non HIV-related disease.

    While I agree with the comments that those who are having unprotected sex need to have more responsibility for their health, that does not mean that those knowingly infected individuals shouldn't likewise be punished. I'd say those who get infected are paying plenty.

    If it were me, I'd probably take care of this myself. If I found out a partner knowingly infected me, they'd find him floating in a river. Maybe if there were more dire consequences for spreading HIV, people would think twice before barebacking someone and lying about their status while doing it.

    Posted by: Tyler | Aug 26, 2010 12:11:25 PM


  15. I had a guy try and trick me into barebacking with him, when my guard was down and had way too much to drink. I had to pull the bare cock out just as it was about to slip in a number of times. Even though I was a millimetre away from doing it I found the wherewithal to stop the train and try and get a rubber on, despite his protestation, begging and then feigned insult and anger. No sex happened because of the eventual drama but a few days later I found out he is positive.

    I felt like I had almost been hit by a train, the guy was intentionally trying to infect me! Had I had a little more to drink, a little less willpower with the insistent prick, I might well have been infected. I am sorry but I don't give a shit about his viral load or that it's treatable - that to me was attempted murder.

    It certainly felt like someone tried to kill me and there is no other way of putting it. It was calculating and it was premeditated. It scared the crap out of me that another human being would intentionally inflict a lifetime of isolation, disease and medical treatment not to mention the possibility of dying on another for a quick rubberless fuck.

    So gist of this article doesn't sit all that well with me - it seems to want to enable this kind of psychopathic behaviour.

    The question is - why if you know that you are HIV positive would you infect someone knowingly? I don't see any other reason other than the one that is plain as day before me - you wanted to harm them.

    Posted by: James | Aug 26, 2010 12:18:50 PM


  16. Thanks for this, I used to be hot and bothered about HIV when I was 20 because so many people in Seattle were dealing with it poorly. There was a sharp spike in HIV infections and some people were attributing it to lazy infected people not disclosing their status out of fear of rejection.

    While I do feel better about HIV now, I always like to pretend I have it to see how I feel about it. If I got HIV right now I don't know how it would affect my life. I haven't been keeping up with the costs associated with living with HIV for a long time now. Right now I have a terrific job and exceptional health insurance so I would imagine that I could deal with it if I got it now. But 4 years ago? I might not have had the ability to treat it at all.

    I think that the financial burden and the social stigma is still a huge part of getting this disease, Even if you can live a regular lifespan with it. I don't think it should be considered aggravated assault but it does need something because it will alter your life for the worse at any level.

    As for stopping the disease, just use condoms and grow up and tell your partners when you sleep around. People get HIV these days from lies and shame. If you want to avoid HIV don't date childish losers (And don't be one).

    Posted by: Fenrox | Aug 26, 2010 12:28:45 PM


  17. It is the responsibility of both partners to protect themselves. The reprehensable habit of ignoring a HIV+ status is not helped by the hypocritical attitudes of most gay men; if your Poz you are a pariah, if you aren't 'Party On'. Lets face it, alot of gay men are not always emotionally formed so well, and such a conflict "should I do the easy thing, or the really difficult thing and be honest". Guess which one wins in that debate. That problem is never going away, as it is the nature of the conflict "infected or Normal". All the more reason to stress PERSONAL RESPONSIBILITY.Poz on Poz is a whole differant debate, and situation.


    Posted by: booka | Aug 26, 2010 12:37:01 PM


  18. First a small correction to the author of the post...Your Simpsons example of using physical force or threats thereof to get Bart's lunch money constitutes felony robbery in most jurisdictions, not misdemeanor assault.

    Now to address the naive apologetics...

    Treating AIDS like it's just some other "manageable illness" takes away from the fact that this is an incurable condition which will most likely result in death at some point. It may take 5, 10 or 15 years, but it's gonna kill you.

    Treating it as another "manageable illness" ignores the cost of meds, doctor visits, side effects, lost time from work, and all the other issues which come with having an incurable disease.

    Treating it as another "manageable disease" ignores the fact that your insurance company will do everything it can to leave you high and dry.

    Treating it like another "manageable disease" completely ignore the fact that you're always going to be treated as a pariah by most folks. Especially if you got it from sexual activity.

    Royy, got it better than this attorney did; his example is spot on regarding why we need to continue this fight and not simply brush aside this idea that intentionally transmitting HIV ought not to be punishable; all the medical advancements in the world are meaningless UNTIL THERE'S A CURE.

    As far as I'm concerned, the law needs to be extended to include men who deliberately refuse to get tested because they know or have reason to know they'd come up positive but would rather lie to themselves and others about it.

    Posted by: DR | Aug 26, 2010 12:37:04 PM


  19. James- sooo sorry but if you are bottoming and don't want to get infected you had better insist on a rubber or don't bottom, period. No one wants to wear a rubber it is uncomfortable and is not 100%. Also people have latex allergies and rubbers can cause rectal bleeding, so what's worse?
    My suggestion? A committed relationship with a negative person, or a dildo.

    Posted by: Ty | Aug 26, 2010 12:43:39 PM


  20. I find this egregiously dismissive. IMO, a man who knowingly attempts to infect another with AIDS is assaulting that man. Referring to AIDS as Manageable seems either callous or ignorant or both. A prosthetic leg or living in a wheelchair are also "manageable" and possible outcomes/effects of assault.

    Posted by: Kile Ozier | Aug 26, 2010 12:53:31 PM


  21. What about the situation where one person knows they're hiv+ and the other just doesn't ask? Is that aggravated assault?

    I don't think that this is as cut and dry as it could be, but I also think that people with hiv aren't likely to get pity from the courts. Even us gay men seem to look at them as if it's their fault and therefor there responsibility (but not ours).

    Posted by: Randy | Aug 26, 2010 12:57:16 PM


  22. TY, you knob, I DID insist on a condom - that was the point of my story. My suggestion? Learn to read.

    Posted by: James | Aug 26, 2010 1:14:46 PM


  23. Even since retrovirals have been on the market, with a single exception most of the people who I've know who had HIV died of AIDS and one had his virus evolve on him and his most of his meds stop working and he almost died.

    In my limited experience, HIV=Death. For those people in my life the cocktails either did not work or caused life threatening complications, or they came into play too late, or they did not know until too late.

    It affects my perception of the disease and for me knowingly spreading the disease is attempted fucking murder.

    Posted by: Polyboy | Aug 26, 2010 1:23:26 PM


  24. Oh, aids! *jazz hands*...

    Hmmmm, a decreased viral load does decrease your chance of getting AIDS in unprotected sex (*jazz hands*), but it doesn't eliminate it, and further, if someone knew their viral load and still deceived someone else (yeah, yeah, it takes two to the tango, but one can AIDS! *jazz hands*...which changes things...as AIDS is a horrible, horrible disease that takes a lifetime of costly medication to manage and will eventually kill you in a painful, undignified way...and the other participant's getting an orgasm...so...let's address that in law), then it seems that plays into intent. If someone intends to give someone else aids or hiv (*jazz hands*), then that should be taken into account at trial, regardless of the viral load (because that can always change...). Hard to prove that, though. But the fact that it doesn't eliminate the possibility of getting HIV/AIDS (*jazz hands*) is something else to take into account, too...but not too much, as background is important.

    HIV/ AIDS! sure is manageable (*jazz hands*)...if you are of a certain demographic...But who wants aids? Only crazies...'cause who wants a deadly disease that's manageable? So I say no to aids and no to hiv!

    Now if only people would keep their HIV/AIDs to themselves, this wouldn't be a problem. Of course, a lot of them don't even know their status...so buckle up, kids! Sure, it's not as fun, but there are so many other things you can do besides have fun.

    Posted by: TANK | Aug 26, 2010 1:29:53 PM


  25. Be sure and check out the resources at aidslaw.ca (especially the legal briefs for your next piece). It's the website of the Canadian HIV/AIDS Legal Network.
    Canada is a country that has a LOT of non-disclosure criminal cases. There have been a lot of interesting decisions by judges which actually take into account the VL, STI status,position,etc.
    I would put forward that using the criminal law (vs. existing public health laws) in the vast majority of cases is an inappropriate use of the law. I have personally seen multiple prosecutions of people living with HIV that were malicious in nature (the "victim" knew of the person's HIV status and only put forward a claim after the relationship soured. It comes down to being able to PROVE you disclosed to every partner. Signed and witnessed statements? Bringing your partner to a medical appt where it get logged in their medical records? What about if there only going to perform oral sex (There have been no known cases of HIV transmission from the performer of oral sex....another reason why the likelihood of each exposure MUST be examined with the every tool available in our science/medical arsenal and then taken into account)

    There are darker sides to the abuse of the criminal law that honestly scare me. And I don't feel these issues get much attention.
    ("attempted" assault cases --- where no transmission occurred; reliance on laws to keep us safe and what that does to our thinking around unsafe sex; how the current dialogue around the issue of transmission drives up the stigma surrounding the lives of people living with HIV and how that can make people less likely/able to disclose.

    Science must be a part in any case involving transmission that is brought before a court. In a recent case in Canada, the judge did just that and her decision is beautifully thought out and fair. (details can be found here: http://www.aidslaw.ca/EN/lawyers-kit/index.htm)

    Another missing piece to the puzzle is getting good prosecutorial guidelines in place so that people living with with HIV aren't the victim of inappropriate/malicious/unscientific cass and so that people living with HIV are treated fairly across the board and not on the whim of the (possibly/likely) uneducated prosecutors in their community.

    Great post by the way.

    Posted by: MENDEL | Aug 26, 2010 1:36:08 PM


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