Stop, or My HIV Will Shoot



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.)