AIDS/HIV | Ari Ezra Waldman | Law - Gay, LGBT | News

Criminalizing the HIV-Positive Community

BY ARI EZRA WALDMAN

Despite a spate of good news for the eradication of HIV -- the FDA's approval of Truvada to prevent its transmission, the Supreme Court decision upholding the Affordable Care Act and thus retaining the ACA's great benefits for those living with HIV, and the lifting of the HIV/AIDS travel ban that allowed the International AIDS Conference to take place in Washington, D.C. last month -- there are still countless jurisdictions in which it is essentially a crime to be a sexually active HIV-positive man. In some states, individuals with HIV can be convicted of crimes of varying degrees, with penalties exceeding 10 or 20 years in jail, if they have sex without first disclosing their HIV status. And that is true even if they practice safe sex, are taking antiretroviral medications, have undetectable viral loads, and/or are on the receptive side of the sexual encounter, four factors that when combined make it almost impossible to transmit the virus.

2012-03-13.lambdalegal_sschoettesLambda Legal's Scott Schoettes (right), Director of the organization's HIV Project, and his colleague, Christopher Clark (below), represent one of the many victims of these antiquated laws. Their client, Nick Rhoades, a 34-year-old gay Iowan, was sentenced to 25 years in prison, a punishment Mssrs. Schoettes and Clark got down to time served, despite having sex in a context that made it almost impossible to transmit the HIV virus. But, those 4 years of time served included weeks of solitary confinement, among other humiliations.

The continued presence and spread of HIV is a grave public health concern. Our government has an interest in not only slowing its spread, but, hopefully, eradicating the disease entirely. But, broad criminal statutes that carpet bomb the HIV community are not the answer.

Let's be clear about the issue here. Laws that criminalize the intentional attempted transmission of HIV are different than laws that simply make it a crime for all HIV-positive individuals to have sex without disclosure. Cases like that of Philippe Padieu, who intentionally tried to infect six women with HIV, and Nushawn Williams, who is alleged to have exposed between 48 and 123 women to HIV, stir a natural emotional and punitive response. Such anger has led to the implementation of countless criminal transmission of HIV statutes and laws that punish HIV-positive individuals who intentionally spread the disease or have unprotected sex without informing partners. But, the outcry for criminalization has caused overreach.

Staff_cclark_200I argue that this overbroad criminalization is the product of a longstanding stigma associated with the HIV-positive population, in general. And, that stigma is nondiscriminatory -- it attaches to the Nushawn Williamses of the world just as it attaches to those who have no intent to harm anyone and to those who could not harm anyone even if they wanted to. I have seen cases where prosecutors were allowed to prove intent to kill or do harm merely by proving that the defendant had unprotected sex while aware of his HIV-positive status, even when the statute calls for more than mere knowledge of status. And, I have seen aggravated assault prosecutions of HIV-positive individuals who had a good faith belief that they could not transmit the disease, had used protection, and had no intent to harm. These are the cases that should concern us.

HIV criminal transmission statutes, many of which were written at the height of the AIDS crisis in the early 1990s, allow prosecutors to prove guilt merely by showing that the defendant was HIV-positive at the time of the sexual encounter and failed to disclose his status. But all those statutes hinge on some measure of the likelihood of transmission. And since today's medical technologies allow us to distinguish between types of HIV-positive individuals, our courts should recognize that not all HIV-positive Americans are dangerous weapons. Stigma and guilt-by-status have no place in the criminal law.

AFTER THE JUMP, let's consider the example of one case and see what the law is and what the law should be.

CONTINUED, AFTER THE JUMP...

HivLet's say a hypothetical state makes it unlawful for any person who knows he is HIV-positive to have sexual intercourse with another without first disclosing his HIV-positive status under a criminal statute that punishes anyone who uses a weapon in a way that is likely to do serious harm to the victim. Let's assume for the sake of this hypothetical that HIV can be considered a "weapon" and that the defendant will concede that he was aware that he was HIV-positive and that he did not disclose his HIV status prior to intercourse.

Prosecutors charged Beauregard ("Bo") Tomm with one count of this crime after his one-time sexual partner went to the police after finding out Bo was HIV-positive. The trial took less than a day with prosecutors offering the following evidence: Mr. Tomm is HIV-positive; he did not disclose his status; the defendant and the victim had anal intercourse, which is one of the primary ways HIV is transmitted; HIV is the virus that causes AIDS, a deadly disease with no cure; and, HIV/AIDS causes serious harm or death.

Alongside statistics about how many Americans have HIV and how frequently sexual intercourse transmits the virus, this kind of evidence has convicted countless HIV-positive individuals of relatively serious crimes, carrying significant prison time.

But, there are several problems with this criminal regime. I would like to discuss the most important one.

The "likelihood" of doing harm -- in this case, the likelihood of transmission of the virus -- depends on a host of factors that prosecutors did not address. Viral load, sexual position, and safe sex practices are just three of the most obvious. The lower the viral load -- the amount of virus in the blood -- the lower the likelihood of transmission, and when an individual's viral load is undetectable under current technology, the likelihood of transmission falls even further. Bo's position during his sexual encounter, as his name suggests, was as the receiving partner, and the likelihood of transmission from the receptive to the insertive partner is exponentially lower than the reverse. Finally, if Bo's sexual partner used a condom, the likelihood of transmission is even lower.

This is all to say that each case of anal sex is different. An HIV-positive defendant whose viral load is 40,000, who was the insertive partner, and who did not use a condom engaged in an activity with a significantly higher risk of transmitting the virus than someone whose viral load was under 40 (undetectable), was the receptive partner, and practiced safe sex. 

If prosecutors can prove that transmission is likely merely by offering evidence that anal sex possibly transmits HIV, then two things happen. First, it is factually incorrect. Anal sex can transmit HIV, but all incidents of anal sex aren't fungible. Second, it is legally insufficient. The notion that a "likelihood" threshold could be satisfied by the mere possibility that HIV could be transmitted both actually lowers the threshold and eviscerates the requirement that guilt be proven beyond a reasonable doubt.

Think about it: If all prosecutors had to do was prove is that anal sex can possibly transmit HIV, then no doubt could be reasonable. After all, “[a]nything is possible; there are no metaphysical certainties accessible to human reason; but a merely metaphysical doubt . . . is not a reasonable doubt for the purposes of the criminal law.”  This principle does not only exclude the fanciful (“it is possible that I will burst into flames”), but also the realistic, yet remote. 

If mere possibility cannot survive as a reasonable doubt, it cannot survive as proof beyond a reasonable doubt. After all, there can be no reasonable doubt that anything is possible. And, “anything is possible” cannot survive constitutional scrutiny as a basis for criminal conviction. That makes logical sense. The statement that “anyone could have grabbed the gun from me in the dark before the gun went off” is neither a reason to exclude anyone as a suspect nor a reason to charge everyone else with the crime. If it were, everyone would be charged with everything, no one would be convicted of anything, and the reasonable doubt standard would have no meaning.

That something may be possible, however, is exactly what certain states and the military courts have accepted as proof beyond a reasonable doubt in cases involving HIV-related aggravated assault. By lowering the burden on the government to prove only that HIV could possibly be transmitted, these jurisdictions have obviated the need for a reasonable doubt standard. There can be no scintilla of doubt, let alone a reasonable one, that HIV can theoretically be transmitted through sexual intercourse. For that matter, HIV can theoretically be transmitted by oral sex, spitting, biting, or getting scratched by a monkey, but each is less likely than the one before it.

This is what lawyers call a due process problem, a constitutional evil of the highest order, especially when the strong arm of the criminal law is in play. And, HIV-positive Americans are victims of these due process violations all the time. Thankfully, our attorneys at Lambda Legal are working on the problem.

For more information about this and other criminal law issues facing the HIV-positive community, check out Lambda Legal's HIV Project and the Center for HIV Law and Policy.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

 

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Comments

  1. There is no excuse for not disclosing one's HIV+ status prior to sex, none. If you don't, you're just selfish. You know or suspect that if you disclose your status, your hookup will refuse to have sex with you. Tough.

    It is everybody's right to know whether their hookup has HIV+/AIDS. People shouldn't have to walk around being expected to be psychic.

    Your life changed when you got HIV+. If that includes less sex with less partners, WHO CARES?!

    Punishment for not actually transmitting HIV to your hookup shouldn't be smaller than 10 to 20 years, though. THAT'S IT.

    But EVERY TIME you don't disclose your carrier status 'til after sex (and it's quite telling if you feel like disclosing it afterwards. You know that there was a risk of transmission and feel like your hookup has a right to know, yet you were too selfish to tell him prior to sex), you're guilty of a crime.

    Posted by: Philip Wester | Aug 8, 2012 11:54:36 AM


  2. I do not understand how anyone can say it is okay for an HIV infected individual to have sex with another person without disclosing his/her status if he/she is aware of it.

    Personally, I feel the same way about STDs such as Herpes.

    In my opinion to do so is immoral, unconscionable, and indefensible.

    I do not believe in discriminating against people with HIV. I do think they should have the basic decency to be honest with a potential sexual partner.

    I'm not suggesting that an HIV person abstain from sex. I'm just saying be upfront and honest.

    Posted by: Anon | Aug 8, 2012 11:57:08 AM


  3. I do not understand how anyone can say it is okay for an HIV infected individual to have sex with another person without disclosing his/her status if he/she is aware of it.

    Personally, I feel the same way about STDs such as Herpes.

    In my opinion to do so is immoral, unconscionable, and indefensible.

    I do not believe in discriminating against people with HIV. I do think they should have the basic decency to be honest with a potential sexual partner.

    I'm not suggesting that an HIV person abstain from sex. I'm just saying be upfront and honest.

    Posted by: Anon | Aug 8, 2012 11:57:09 AM


  4. Seriously, why is Towleroad so obsessed with defending guys like Tomm? He was SELFISH. All he wanted was sex. And he KNEW that disclosure of his status likely meant he'd have to go without.

    But he also knew that he had a responsibility to tell his partner IN CASE he gave him HIV. So he told him only afterwards.

    WHY does Towleroad want to give HIV+ men carte blanche to have sex with others without telling them of their carrier status first?! WHY?!

    Is it sad that HIV+ men have a hard time finding partners? Yes. But they have NO RIGHT to endanger other people (and anal sex with someone who is HIV+ IS dangerous, even with all of the necessary precautions, to some degree) LIVES just to get some sex.

    Posted by: Philip Wester | Aug 8, 2012 11:58:23 AM


  5. Thank you for bringing both a legal perspective and some rationality to this. As we saw on the Towleroad thread the other day about the Rhoades case, there is no shortage of ignorance and irrationality about HIV transmission or of demonization of the HIV+ even from within the gay community. Some of the responses to Rhoade's failure to disclose his status--despite using precautions, despite the low viral load, despite his partner's equal failure to communicate--were dangerously reactionary, the desire to shift all responsibility for sexual risk onto someone other than themselves.

    Unreasonable criminalization of HIV+ people does nothing to prevent the spread of HIV (which should be the goal of such laws) and does nothing to encourage people to take responsibility for the sexual health of themselves and their partners. They also discourage people from knowing their status.

    Posted by: Ernie | Aug 8, 2012 12:12:14 PM


  6. The thing that bothers me is that a case is completely contingent on the honesty of the receptive partner. In this scenario it's entirely possible that a man with HIV could tell his partner that he has the virus, have safe sex, and then the other man (for whatever reason) turns around and says 'No he didn't tell me!'

    What happens then? Does the court simply side against the HIV + man? I don't know, but it seems to me that the whole process is completely lopsided against an HIV+ man.

    Does an HIV+ man have a responsibility to reveal his status? I would have to say 'yes', but this sort of judicial overreach is ridiculous.

    Posted by: Oz in OK | Aug 8, 2012 12:13:33 PM


  7. I am sorry but if you have an infectious disease, no matter how healthy you appear and no matter what drugs you take or the precautions available, that could potentially put my life at risk you owe it to me to disclose your condition and let the decision about sexual relations be mine to make.
    I know that may sound harsh but my health is much more important to me that your hurt feelings and fears of rejection. Just be responsible and issues like criminal prosecution would not come up.

    Posted by: Swiminbuff | Aug 8, 2012 12:16:33 PM


  8. Again, NOBODY can come up with a valid excuse for why someone SHOULDN'T have disclose their HIV+ status to prospective partners prior to sex.

    "Low risk" is not an excuse. No matter what, if you're HIV+, there's a risk of you spreading it to your partner.

    Posted by: Philip Wester | Aug 8, 2012 12:21:10 PM


  9. You are all right that your status should be disclosed (as well as asked for) but now that HIV is NOT a death sentence the laws and expectations should be about consistency...If you expect someone to disclose information (and they should) then you should also ask for it and if you are truly worried demand to get tested before engaging in sex with that person...you are far more likely to get HIV from someone who doesn't know they have it then someone on meds....

    #Phillip; if you want a sentence of 10-20 years then the same should happen for people with herpes 1 or 2, hepatitis, TB, HPV or any other communicable disease that is not disclosed in advance of sexual contact....and before the arguments start about HIV being 'much more deadly' talk to the women who die of ovarian cancer or men with rectal cancer which can be caused by HPV

    Posted by: dan | Aug 8, 2012 12:23:32 PM


  10. Um, the other guy could have asked, right? Yes, it's good form to let your partner know if you're HIV+, but the other guy has the opportunity to inquire as well.

    Culpability in consensual sexual matters is equally shared.

    Posted by: The Milkman | Aug 8, 2012 12:24:51 PM


  11. @ERNIE Thank you -- very well said. It is appalling to read some of the fantastically ignorant comments. Everything from outright ignorance to Philip Wester above remotely implying (again) that even condoms aren't effective enough protection when in fact they provide an extremely high degree of protection (I am assuming Philip doesn't even drive a car because even with taking the precautions of using a seatbelt, driving a car doesn't guarantee any degree of physical safety.) And implying, even remotely so, that condoms aren't effective enough is very dangerous to the sex lives of gay man (or straight folks for that matter). Hopefully rational and reasonable discussions on this topic will keep moving forward. It will certainly be an uphill climb.

    Posted by: Ark | Aug 8, 2012 12:26:20 PM


  12. The first two comments say it well:

    SELFISH, INDEFENSIBLE, UNCONSCIONABLE.

    Posted by: ag | Aug 8, 2012 12:27:11 PM


  13. A responsible person, Philip Wester, assumes every sex partner is HIV positive and takes the appropriate precautions.

    There, that was easy. I certainly hope you grow up some day.

    Posted by: jht | Aug 8, 2012 12:29:04 PM


  14. I agree with the majority. If we were talking about a disease that NONE OF US HAD, we would all agree that someone with an STD should inform their partners.

    It is not for any of us to decide how unlikely it is to transmit. The fact is we shouldn't sacrifice other people's health just to defend someone who doesn't want to be turned down for sex.

    Posted by: SPOT | Aug 8, 2012 12:30:03 PM


  15. Great write up. I'm glad smart people like Ari are helping to change discriminating attitudes and laws. This prompted me to set up a recurring donation to Lambda Legal.

    Posted by: Dave | Aug 8, 2012 12:30:03 PM


  16. There is no excuse for not disclosing your status to someone, even durin a hookup. Stop defending this guy. What he did was wrong.

    Posted by: Eric | Aug 8, 2012 12:31:41 PM


  17. BTW, there was a typo in my 1st comment:
    Punishment for not actually transmitting HIV SHOULD be smaller than 10 to 20 years.

    Posted by: Philip Wester | Aug 8, 2012 12:34:58 PM


  18. In our country it is criminal to have sex with a person if you are HIV positive and do NOT tell it to your future sex partner. And I agree that it shall be so because I would be the one to choice if I would or not would have sex with an HIV positive person(if I would take the risk). And so if I'd do it i would get the information i needed about it to feel safe, from health care/doctor on how I could protect myself best.

    I don`t mean to be mean, but I do not think I would ever choose to sleep with a person who has HIV+. but that is just me.

    Posted by: NN | Aug 8, 2012 12:35:58 PM


  19. JHT: The best precaution against not getting HIV+ is simply to not have sex with HIV+ people. If one is to assume all sexual partners have HIV and take the "appropriate precautions", we wouldn't be having sex with anyone.

    Also, are you listening to yourself? Why should all gay men have to treat each other with suspicion just because a selfish few want sex?

    I DO use protection. But I should still have the choice to simply NOT have sex with HIV+ men. Those who refuse to disclose their status prior to sex rob me of that choice.

    Because they are SELFISH and only think about themselves.

    Posted by: Philip Wester | Aug 8, 2012 12:37:33 PM


  20. I don't usually step into flame wars, but in light of the potential psychological damage this is likely doing to HIV+ people, I want to step in and say that HIV- bottoms by and large do not feel the same way as the one psychopath who is repeatedly posting on this issue under multiple, anonymous pseudonyms. As with any righteously indignant opinion, you should expect to attach a real name to it if you expect any modicum of respect re your righteousness, no matter the number of exclamation points or capital letters.

    Whatever the law is on the subject, I find no reason to make people out as morally reprehensible for not affirmatively disclosing. Putting them in jail is insane. Demanding that other people be put in prison when you're too much of a chicken to reveal your internet identity is more insane, and hopefully, demonstrative that these people are not speaking representatives of a silent majority, but a small group of hateful individuals throwing their voices at the Salem witch trials.

    People who are negative and want to avoid HIV and have a brain ask their partners about it before sex. It would be great if people disclosed it beforehand, unprompted, but judging by the reactions of some of these nutcases, I can see why many of them don't. I ask, and it's not hard. If you take it seriously enough to YELL IN ALL CAPS about other people PUTTING LIVES IN DANGER, then you shouldn't have an issue with the equally important, also not too difficult conversation about potential partners' safe sex practices, given that the more likely vector is someone who was recently infected and doesn't know yet. We live in a world with many serious infectious diseases, many of which are not widely thought of as STDs but are easily transmitted (e.g. Hepatatis B from sharing a disposable razor, MRSA) among friends/roommates/sex partners, and the only reasonable way to limit new infections is prudent public health education and vaccinations, not absurd demands that people with the most stigmatized diseases effectively live on an island.

    Posted by: Alex Rowland | Aug 8, 2012 12:44:44 PM


  21. "Again, NOBODY can come up with a valid excuse for why someone SHOULDN'T have disclose their HIV+ status to prospective partners prior to sex."

    I don't think anyone is arguing against disclosure. It is never wrong for an HIV+ person to disclose his status. It's preferable in a perfect world. Just as it is never wrong for anyone, positive or negative, to have an open discussion about status and honesty around risk. But people are human, and sex is powerful.

    The problem is the assumption (people like Rhoade's hookup had) that someone NOT saying he is positive means that he is negative. Or the presumption that someone who says he is negative knows this for certain and is telling the truth. These laws encourage people to lie, encourage false reassurances about status, and discourage people from taking responsibility and assessing their own risk comfort zone. Many people could be positive (or negative) and have no idea. Is someone who is positive but hasn't taken the responsibility to be tested less liable than someone who was responsible enough to get tested and treated?

    The safest option is to assume that if you are hooking up with someone, in all probability you do not know that person's status for sure, no matter what they say. And if it is outside your personal risk comfort zone to engage in a particular sex act (say, anal sex with condoms, which are very effective but not infallible) without knowing for sure that person's status, think twice about consenting. Protect yourself. And don't make the mistake of using silence around status, or an assurance of being negative, as a safer sex measure, because often times it isn't.

    Posted by: Ernie | Aug 8, 2012 12:45:32 PM


  22. @Alex Rowland:
    They don't have to live on islands. Nobody's said they have to. I just don't want to have sex with them. And the burden to ask shouldn't be on.

    The infected minority shouldn't be the one to volunteer this information. It shouldn't be up to the uninfected majority to have to walk around asking all potential sex partners whether or not they have HIV.

    Also, you still have no valid excuse for your advocating of not having to disclose besides "It'll hurt the feelings of the HIV+ community and probably give them less potential sexual partners".

    TOUGH.

    Why is HIV so special? Because so many gay men have it?

    I live in Sweden. It is illegal in Sweden not to disclose one's HIV status prior to sex. We've never had a major scandal where someone knowingly had sex with someone HIV+ and then claiming they didn't tell them. We've never had massive protests against this law. It's working just fine.

    Because Swedes aren't SELFISH like that.

    Posted by: Philip Wester | Aug 8, 2012 12:50:53 PM


  23. @Ernie:
    Why must the uninfected majority have to suffer due to the infected minority? Why must I treat every single potential sexual partner as a potential HIV carrier and "think twice" about consenting because SOME people are HIV+?! Why is it not enough for me to use protection?

    WHY do some people think it an unreasonable demand that all HIV+ people ALWAYS disclose their status prior to sex?! THEY have HIV. Why should anyone else have to suffer for it?

    Why are the uninfected majority expected to walk around on eggshells, looking twice over their backs before each sexual encounter and treat everyone else with suspicion when this can all be easily alleviated by the infected minority taking responsibility and disclosing their status prior to sex?!

    It is common human DECENCY for them to do so.

    Posted by: Philip Wester | Aug 8, 2012 12:54:34 PM


  24. Rhoades was treated badly. His sentence was wildly disproportionate to his offence since he did not transmit the infection and practiced safe sex. On the other hand, he did break a reasonable law that persons with HIV should inform their partners before having sex with them, and he should have been fined or placed on probation instead of having to serve 4 years, including time in solitary confinement. HIV positive people have a moral as well as legal obligation to inform their partners beforehand.

    Posted by: Jay | Aug 8, 2012 12:54:34 PM


  25. Jay:
    For the last time, he did NOT serve 4 years. He served 9 months in jail awaiting sentencing. He has to serve another 4 years and 1 month on PROBATION, which means NO jail time unless he breaks any other laws or terms of his probation.

    So, all in all, he's going to serve 9 months unless he breaks another/the same law.

    He shouldn't have been sentenced to 20 years to begin with and he shouldn't be in the sex offender registry, but 5 years probation and 9 months in jail + restitution? TOTALLY warranted.

    He KNEW that he was wrong in not disclosing of his status prior to sex. He lived in a state where it was a crime not to do so, yet he chose not to. But he disclosed his status AFTER sex. Why? Because he KNEW his partner had a right to know JUST IN CASE transmission DID occur. But he was SELFISH and he wanted sex and he suspected he wouldn't have gotten it if he'd followed the law, so he BROKE the law.

    Rhoades is not an innocent poster boy. His original sentence was too severe and his new sentence is slightly too severe (the sex offender registry part), but he was GUILTY of a crime. And he likely KNEW that what he did was wrong.

    Posted by: Philip Wester | Aug 8, 2012 12:58:31 PM


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