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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'm sorry, there are so many holes in Ari's argument.

    What if the HIV- partner in this situation has an underlying condition that causes them to have an already compromised immune system? They may not even know that themselves. HIV could be much more lethal to that person then.

    What if the HIV+ partner does show a low viral load on tests before the time of the incident... people forget to take their medications all the time, and usually think they are fully compliant. They're viral load could have risen without them knowing it.

    Knowingly lying to partners about HIV+ status is still messing with other people's lives, and still seems like aggravated assault to me.

    Posted by: P | Aug 26, 2010 3:27:02 PM


  2. Hey Ari, you go have unprotected sex with someone with HIV/AIDS who hasn't told you they have it, get diagnosed with HIV, then get back to us. As to your "manageable illness," you have no idea what you are talking about. I lost over 35 friends to this vile disease over the years, and am now witnessing, first-hand, your "manageable illness" in three of my friends. Let me tell you that a life sentence, is a life sentence. No matter what the medication, the impact on their lives is HUGE and FOREVER. No offence, be you're talking out of your ass. You aren't helping things at all. Write about what you know, not what you think you know.

    Posted by: jm | Aug 26, 2010 7:11:13 PM


  3. This is complicated issue.

    If you're going to have unprotected sex, you have to deal with the consequences.

    If you're HIV+, are aware of your status and lie about it to an inquiring potential partner, and sex occurs, then, yes, that is the same thing as pointing a gun at someone with a partially loaded gun and firing it.

    But, what percentage is the grey area in between?

    The fact that the disease is now more manageable doesn't change my sexual practices. Pro-condom here.

    Posted by: VInce in WeHo | Aug 26, 2010 7:45:52 PM


  4. Did you seriously just compare HIV+ status to MS or Crohn's? Aside from the fact that MS and Crohn's aren't communicable diseases, neither prognosis comes with a host of difficulties in the future that can come out of left field the primary physician, patient or researchers. The complications and comorbidities that can arise simply from aging and HIV notwithstanding, the constant influx of drugs and the half-life of those drugs means that long term toxicities arise and can cause problems in the form of hypertension, insulin resistence or dyslipidemia to name a few.

    While I'll thank you on behalf of my entire field for putting some faith in us, unlike some patients I've had the displeasure of seeing, this doesn't mean that HIV isn't a death sentence. While people are living longer lives in this era of expensive HAART therapy, the quality of life for more than half of my patients decreases significantly in the late 40s and early 50s. And more than a handful of long term HIV patients are finding themselves suffering from geriatric disorders in their mid-50s instead of late 70s - cardiovascular diseases, osteoperosis, arthritis, diabetes and renal disorders.

    Posted by: James | Aug 26, 2010 9:38:58 PM


  5. Hmmmm, I think most MSM are unconcerned with aids or refer to it as a manageable illness is that they don't think they'll live beyond forty, or fifty... That we're, ultimately, in perpetual youth, and suffer the delusion of invincibility that attends it. So not talk how awful it is for aids people past fifty's gonna make a difference to the seroconversion rate. Too bad, I say...hiv/aids are icky.

    Posted by: TANK | Aug 26, 2010 10:29:07 PM


  6. I believe that anyone HIV+ who willingly barebacks anyone else, + or not, should be charged with assault. If the "victim" is +, then simple assault. If -, then aggravated assault.

    Just because both participants are + does not make them less at risk. They can cross infect each other with different "strains" of drug resistance. Assault is harm, or grievous harm. Spreading HIV definitely fits the definition of grievous harm, being mitigated by pre-existing infection.

    Posted by: Matt | Aug 26, 2010 10:36:49 PM


  7. and if that were in english, I just might have a point. But it is an empirical posit...well, it would be an empirical posit if it WERE phrased coherently. But it's not, so it isn't. And, quite frankly, I don't care to repeat cliches.

    Posted by: TANK | Aug 26, 2010 10:51:34 PM


  8. 1. HIV POSITIVE people have a responsibility to PROTECT THEMSELVES (from other HIV positive people who could re-infect them AND from HIV negative people with STDs and other infections that can seriously compromise their immune systems).


    2. HIV NEGATIVE people have a responsibility to PROTECT THEMSELVES.


    FACT: NO ONE OWES YOU ANYTHING.
    People, regardless of HIV status, DO NOT have any responsibility to disclose serostatus, STD infections, sexual history, etc. to anyone...especially casual sexual partners.


    FACT: PEOPLE LIE.
    The very question and disclosure discussion itself is useless. Don't even ask, just be safe. Safer Sex every time is the only and best precaution and protection.

    .

    If we were ALL out there PROTECTING OURSELVES like responsible adults this ridiculous issue would not be an issue.

    Posted by: MarkDC | Aug 29, 2010 4:43:21 AM


  9. How can one argue HIV positive people are at "fault" when HIV negative partners have AN EQUAL REPSONSIBILITY to protect themselves with a condom?

    Exactly who is at "fault" here...and why?

    Men always put their personal sexual pleasure above health and welfare. Got a problem with that? Look in the mirror.

    You gonna try and argue straight guys don't think they're immune from HIV? That they don't believe it's a disease of The Gays and IV drug users only? That straight guys have special rights and protections under the law and should always be protected by their casual sexual partners? That straight guys do NOT have to use Safer Sex?

    Posted by: MarkDC | Aug 29, 2010 4:55:04 AM


  10. Do you drive through red stoplights into moving traffic expecting others to stop their vehicles and protect you from a fatal accident?

    NO, because it is safer to obey the traffic light. You have a personal responsibility to protect yourself and other drivers.

    Why would you make an equally egregious mistake by carelessly refusing any personal responsibility for Safer Sex and, instead, expect all sexual partners to protect you? Are you ALL that helpless and gullible? Are you ALL so selfish and short-sighted that you place sexual pleasure above your own health and welfare?

    It is obvious the only sane and intelligent thing practice Safer Sex yourself. Always insist upon safer sex yourself.

    If we can prevent HIV transmission (by insisting on Safer Sex every time) this entire discussion is moot.

    Expecting everyone else on earth to PROTECT YOU FROM YOURSELF is lazy and betrays a Titanic sense of entitlement. You remember the Titanic? The "unsinkable" ship that sank and killed most everyone on board?

    Posted by: MarkDC | Aug 29, 2010 4:57:03 AM


  11. AGAIN if someone is having unprotected sex 22 years afters AIDS first appeared in this country that person has accepted the risk.

    Stop arguing for the right TO KILL YOURSELF.

    AGAIN peole place selfish pleasure above health and welfare. That is why no one wants to use a condom: it doesn't feel as good.

    How can anyone argue one should ask a casual sexual partner their status and expect the truth? Condoms protect you better than someone's "word".

    Posted by: MarkDC | Aug 29, 2010 4:58:12 AM


  12. Having sex without a condom is "entering at your own risk". In other words CONSENT.

    If you pull out a condom and a partner objects are you gonna keep going? Really? Are you not going to be the least bit concerned?

    If you ask a sexual partner if they're HIV positive and they say "no" one of three things could be true:

    1. They're telling the truth
    2. They're lying
    3. They've contracted HIV unknowingly and have not (or do not intend) to get tested, and therefore do not yet know they have HIV.

    Given that reality it is best to forget the HIV conversation altogether and simply use protection EVERY TIME with every partner. Ignorance and deception is no defense against STDs, HIV, unwanted pregancies, etc.

    Posted by: MarkDC | Aug 29, 2010 4:59:46 AM


  13. Stop or your ignorance and stupidity will shoot.

    Posted by: MarkDC | Aug 29, 2010 5:19:06 AM


  14. @Markdc!!!!

    Nothing more disturbing than stepping forward with such an ignorant and stupid statement:

    "FACT: NO ONE OWES YOU ANYTHING.
    People, regardless of HIV status, DO NOT have any responsibility to disclose serostatus, STD infections, sexual history, etc. to anyone...especially casual sexual partners."

    The bottom line, if you test HIV+ and are having sex of ANY type, with ANYONE, it is YOUR FULL LEGAL AND MORAL RESPONSIBILTY to inform the other person! You can be prosecuted in a court of law for knowing non-disclosure upon having sex with someone, safe or otherwise, if they become infected. Your medical records, are, under court order, subpoenable.

    Even when practicing safe sex and using a condom, people have become infected. Condoms ARE NOT 100% foolproof, ESPECIALLY from fools like you!

    What you are implying here is that you are positive and not divulging your serostatus when you fuck, especially if it's what you described as "casual sex", or in "let's get real folks" words, tricking. You keep your mouth shut, slip on a condom and hope for the best?

    If you ever infected someone would you even give a shit? Maybe you have infected someone and don't even fucking know it because it was never discussed!

    IF SOMEONE ASKED YOU BEFORE HAVING SEX, POINT BLANK, "WHAT IS YOUR SEROSTATUS?" WOULD YOU LIE JUST BECAUSE YOU HAVE A RUBBR ON? YOU ARE SO FUCKED UP!

    I detest your way of thinking "Someone lied to me or didn't tell me or they didn't know they were poz when they infected me, so why should I owe anyone else the benefit of being honest?" That's called criminal negligence!

    If I knew you, I would make a point of telling ANYONE that got close to you, your status.

    I tell EVERYONE I get involved with, up front, that I am HIV+ and it is always met with appreciation and establishes an honesty that sets the stage for discussion on how to or not to proceed.

    Posted by: POZ IN SFO & PISSED! | Aug 29, 2010 4:25:25 PM


  15. Ari overlooks many issues that complicate criminalizing HIV transmission. For one thing, positive people are often sentenced for cases in which they had unsafe-sex but NO transmission occurred (that is, their partner didn't get HIV).

    Also, other factors beyond viral load will raise or lower the risk of transmitting HIV, such as the presence of other sexually transmitted infections and whether the positive person is the top or bottom (though negative tops can get HIV too, especially if they're uncut).

    Keep in mind that one out of five positive Americans doesn't know that he or she is living with HIV. Studies show the vast majority of those who do know they are positive go out of their way to not spread the virus to others. But no one's perfect all the time--especially if desire, sex, booze, drugs and love are involved.

    Respect yourself, your partners and your future. Stay educated, aware and safe.

    Posted by: Trog | Aug 30, 2010 12:23:16 PM


  16. don't know what the jazz hands bullshit was about, but a lot of you queens need to get back to your Log Cabin cocktail hour and stop talking about shit you know nothing about--

    AIDS is merely a medical tag, and doesn't kill anyone. Technically, the possession of advanced HIV disease allows opportunistic disease pathogenesis which would be abnormal in a typically functioning immune system.

    You lynch mob homos should go further, though, in your self-righteousness and burn the faggots that give you HPV (uncurable)--that's a singularly good gateway to a number of cancers, and frankly, I bet it costs less to buy anti-retrovirals for a lifetime than to treat aggressive prostate cancer for 5 years. Way less.

    No one should hid relevant information from a partner--but I have a feeling a lot of you ballsacks post Craigslist ads talking about how "clean" you are--as if your mouth wasn't a gonorrhea swimming hole and your mangina wasn't itching with that special sort of syphillis that a special god has reserved just for you clean boys.

    Now that you've had your little pussy tantrums from behind your mocha cunt lattes in Cuntbucks, or wherever your juice is leaking these days, go look up the basic information on the likelihood of transmission from suppressed viral load partners in either anal or oral sex and please tell anyone who's tard enough to listen how anyone deserves to go to jail in such a scenario.

    You people would sell your cockheads for a shot of morality that tasted like the cum of most guys who routinely reject you. They must smell the stink of high and mighty like a streetwalker stank for miles before you ho's show up.

    Namaste, bitches.

    Posted by: MAP | Aug 30, 2010 9:25:29 PM


  17. I got HIV the first time I had unprotected sex at a bathhouse 20 years ago.Since then I haven't had sex again with anyone, I am suicidal, depressed and stay at home as I don't want to have to tell people I have it.It has ruined my life and my outlook on life.I am healthy but I don't date or have sex.

    Posted by: Peter | Aug 30, 2010 11:25:21 PM


  18. @ MAP

    Dude you are a rock star.

    Sadly Gaytards are immune to intelligence and logic. You might as well debate human evolution with Mormons, Jehovah's Witnesses or Scientologists. In many ways Official Gay Culture feels no different than any of those cults.

    Posted by: MarkDC | Aug 31, 2010 9:53:24 AM


  19. @ POZ IN SF0 & PISSED


    Projection is an arch faggot move. I hate it when creepy faggots personalize intellectual arguments.

    Hurling accusations of Postive status as an insult? Stop projecting sero-status as a weapon you self-loathing douchetard.


    ___________________________________


    "I detest your way of thinking "Someone lied to me or didn't tell me or they didn't know they were poz when they infected me, so why should I owe anyone else the benefit of being honest?" That's called criminal negligence!"

    It's not about "honesty" it's about protection. You just don't get it. PEOPLE LIE. Makes no difference if you're honest or not. HIV infects everyone. Condoms work a whole lot better than trust.

    SAFER SEX HAS NOTHING TO DO WITH DISCLOSURE. USING A CONDOM AND DISCUSSING HIV STATUS ARE TWO SEPARATE ISSUES ENTIRELY.

    ______________________________________


    "Even when practicing safe sex and using a condom, people have become infected. Condoms ARE NOT 100% foolproof, ESPECIALLY from fools like you!"

    I guess you'd be happy if you did not use a condom and got HIV? That would somehow be ok?

    ____________________________________


    "I detest your way of thinking "Someone lied to me or didn't tell me or they didn't know they were poz when they infected me, so why should I owe anyone else the benefit of being honest?" That's called criminal negligence!"

    No. The lesson to learn from having UNPROTECTED SEX WITH A PARTNER WHO LIED is to henceforth protect yourself and your partners. Creepy how you project dishonesty, confusing logic for malicious intent. I guess I threaten you.

    AGAIN, SAFER SEX HAS NOTHING TO DO WITH DISCLOSURE. THEY ARE TWO SEPARATE ISSUES ENTIRELY.

    _______________________________________


    AGAIN...

    If someone is having unprotected sex 22 years AFTER the scourge of AIDS first appeared in this country that person has ACCEPTED the risk.

    THAT IS CONSENT.

    Stop arguing for the right TO KILL YOURSELF.

    Like I've already said people selfishly place pleasure above health and welfare. That is why no one wants to use a condom: it doesn't feel as good.

    How can anyone argue you should ask a casual sexual partner their status and expect the truth? Condoms protect you better than someone's "word".

    Posted by: MarkDC | Aug 31, 2010 10:32:06 AM


  20. @ MAP et al

    Guys like you are here to caustically gnarl each other's damaged psyches like the brittle arch faggots you are.


    Gaytards.

    .

    Posted by: MarkDC | Aug 31, 2010 10:36:10 AM


  21. @ MAP et al

    Guys like you are here to caustically gnarl each other's damaged psyches like the brittle arch faggots you are.


    Gaytards.


    .

    Posted by: MarkDC | Aug 31, 2010 10:39:22 AM


  22. Whenever there are posts on this subject I find gay men’s comments to be the most reactionary, draconian and fear based. The idea of somebody INTENTIONALY giving someone HIV is a matter of he said he said. Also, the vast majority of us who are responsible POZ folk don’t need anymore stigma especially from the gay community. We come to this virus for many different reasons yet so many presently negative gay men out of fear lash out at us with a zealousness of a fire and brimstone preacher.

    Stop criminalizing me and mine, I am a human being not a deadly weapon, if I liked tattoos I’d get that tattooed over my entire body.

    And for the record, most of the comments here are woefully ignorant of present day treatments and you know what you can do with your death counts for us, “yo may live 5, 10 years” That’s some stat, too bad it’s not at all true.

    For any POZ folk reading some of these hateful little screeds about how we should be put in prison or tossed in a river, you are worthy good people no matter how you came to the virus, take care of yourselves and spread the love not the virus!!

    OH BTW, Great Post, FINALY intelligent conversation on the subject.
    s

    Posted by: rich | Aug 31, 2010 11:18:53 PM


  23. PS I (heart) Map!! you single? I like your fire xxoo

    Posted by: rich | Sep 1, 2010 12:03:00 AM


  24. So much ignorance and bigotry on this thread. I'm poz, and yet very healthy. Absolutely no side effects, undetectable viral load, and a CD4 higher than many negative people ( quadruple digits). My recently poz friends all have similar experiences.

    That said, it's true that there can be any number of complications that would make HiV more or less dangerous for any given individual. But the law is not too concerned with managing all risk. Unforeseen consequences are generally not punished, and the law should not guard against the worst-case scenario for activities that are generally harmless and ubiquitous.

    I also find it troubling that a negative bottom can bareback all across town, and then pin the conversion on a poz person who failed to disclose. What if this person acquired the virus before encountering the named assailant? And what if this person spread it to others because his last test was negative even though he had barebacked with muliple partners in the interim? The problem with these laws is that they do not address risk properly. The most risky sexual partner is a positive person who does not know their status and convinces others to bareback because their last test was negative. And yet, under these laws, this person is not culpable. Seems like the law discourages frequent testing for those who regularly engage in risky behavior.

    Posted by: Nate | Sep 1, 2010 6:45:58 PM


  25. MAP - You ROCK! Keep up that fighting spirit.

    And for the rest of you fear-mongering, "clean UB2" cocksuckers, get your dirty cunts into the nearest STD clinic b/c something tells me you all are as dirty as the last cum load you just swallowed. Oh right, b/c swallowing is "safe"....

    Posted by: B-rod | Sep 1, 2010 9:55:49 PM


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