Criminalizing the HIV-Positive Community

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.

 

Comments

  1. Philip Wester says

    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.

  2. Anon says

    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.

  3. Anon says

    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.

  4. Philip Wester says

    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.

  5. says

    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.

  6. Oz in OK says

    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.

  7. Swiminbuff says

    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.

  8. Philip Wester says

    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.

  9. says

    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

  10. The Milkman says

    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.

  11. Ark says

    @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.

  12. says

    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.

  13. SPOT says

    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.

  14. Dave says

    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.

  15. NN says

    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.

  16. Philip Wester says

    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.

  17. says

    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.

  18. says

    “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.

  19. Philip Wester says

    @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.

  20. Philip Wester says

    @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.

  21. Jay says

    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.

  22. Philip Wester says

    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.

  23. says

    @Phillip: Is it illegal in Sweden not to disclose your status of HPV, Hepatitis, Herpes, TB, Chlamydia or gonorrhea?
    I don’t disagree with disclosing HIV; but I am curious if HIV non-disclosure is illegal why isn’t non-disclosure of any of these other potentially life threatening diseases not illegal too?

  24. Ben says

    It is hard to describe how much contempt I have for Ari Waldman. But as much contempt as I have, it doesn’t compare to the contempt he shows the readers of Towleroad. He knows very well that no law “criminalizes the HIV+ community.” No law being discussed here criminalizes any person with HIV. That is called criminalization of status and, if it had been enacted, promptly would be struck down as unconstitutional. None of the laws here do that, but Ari makes that completely false claim anyway, right in the title of the post. He thinks that you all are such rubes, such unthinking nonlawyers, that he can say whatever he likes to manipulate your emotions.

    As far as what is criminalized – sexual conduct that can lead to exposure – Ari’s claims that a particular individual reduced the risk is of no relevance. It is the partner’s right to assess the risk. If the risk is as low as Ari assures us in a given case, the partner may opt to proceed with sex. Or not. It is his choice to make after disclosure.

    Ari, on top of your loathsome commentary on Tyler Clementi and the poor “ruined” life of Dharun Ravi, you have truly made an impression of a man with no ethical framework with which to evaluate issues of importance to gay people.

  25. phluidik says

    If you are HIV+, you have a responsibility to disclose that fact to your sexual partners, period. They have a right to choose whether or not to entertain that risk.

    Further, these laws aren’t just about whether or not someone has the potential to infect someone else, or how that potential might be mitigated during sex. This is a narrow viewpoint that must be rejected outright.

    These laws also serve to provide punishment for the emotional and psychological harm that failure to disclose inflicts on the victims of this type of assault.

    The sudden revelation that a person you have had intercourse with has a disease and did not bother telling you about it (for whatever reason) can be emotionally devastating to the victim.

    The violation of trust, the fear of not knowing your status while awaiting tests, the medical costs associated, etc. are all a form of harm inflicted by the infected person on the victim. Indeed, some of these non-physical harms can sometimes take a lifetime to recover from.

    To not disclose is selfish, stupid, dangerous, arrogant, and irresponsible.

    That all being said, if you are negative, protect yourself at all times. You never know if that trick on grindr will forever change your life. Be responsible, respect yourself, and play safe!

  26. Philip Wester says

    Dan:
    If you contract (or even simply suspect that you have contracted) an Gonorrhea, Chlamydia, Syphilis, HIV, Hepatitis B, you are required by law to immediately seek out medical attention. You are also required by law to disclose to your previous partners to whom you might have transmitted any of the above STDs of your status. You can do this either personally or anonymously through your doctor.

    Any tests and treatments for the above disease are free in Sweden, by the way, as is the “Sexual Partner Tracking Operation” you have to go through where you try to track down all of your recent sexual partners, even if you don’t know their full name.

    And yes, you are required by law to inform all potential future sexual partners of your carrier status of one of those diseases.

    Sweden, where people aren’t squeamish or prudish about sex and where the lawmakers aren’t idiots.

  27. NN says

    @Dan
    I live in the country next to Sweden. And all who have (or had) STD is registered in a special Register for STD (all sexually transmitted diseases). They will be registered there forever. You are also required if you get/have an STD to inform all your sexual partners that possibly could have been infected. And I say yes to that too.

  28. says

    I think the happiest part about these comments is that apparently if I become an absolutely disgusting internet troll with a heart of glass, I’ll STILL be able to find people willing to have sex with me!

  29. says

    @Philip: You didn’t grasp my argument, so let me put it this way. Even IF every person who knew that he was + disclosed his status to you before hooking up, it is false reassurance to believe that you are then engaging in sex with a – person. In truth, you would have no idea because many many people do not know their status and human beings can lie. So, if you believe that hooking up with someone who is potentially + is beyond your risk comfort level, even using condoms or other safer sex strategies, then you should listen to your comfort level and not hookup with anyone.

    Even if you believe that criminalizing anyone who fails to disclose his status, no matter the extenuating circumstances, is just, these laws will not protect you. Rather, they may give you a dangerous and false sense of security. Only you will protect you.

  30. says

    It is revolting reading these comments.
    In particular, the whining that “he didn’t tell.” Did the panicked bottom tell the guy his status?

    Even when someone tells you they are negative- how do you know? They could be lying. They could have been infected yesterday.

    Some of you people are going to be tested some day and get a nasty surprise. And then I wonder, will all of your self righteousness come back and haunt you.

    I’m old enough to have lived through the start of the HIV epidemic. We learned the basic facts- use a condom, don’t trust anybody. Take responsibility for your own health and body, don’t expect someone else to do so, especially someone you have met an hour before and plan to have sex with.

  31. Carl says

    So those of you who say that those who are HIV+ must disclose their status:
    1.) Is that after you have asked them?
    2.) Should the HIV+ person has to disclose without you asking?
    3.) Are you asking all your sex partners about other STI’s or only HIV?
    4.) Do you ask your partners when they were last tested?
    5.) If it is longer than 3 months do you assume that they are still negative?
    6.) Do you always have safe sex or are you barebacking?
    7.) If barebacking, how often do you get tested?
    8.) Would you not get tested because you then would know that you have to disclose or risk legal penalties?
    9.) Those of you that would not sleep with someone with HIV, could you even be friends with them or is the stigma too great?
    10.) Is criminalization an effective way to prevent the spread of HIV or is destigmatization?
    11.) Are you aware that 1 out of 4 persons do not know that they are HIV+? So someone who does not know their status can spread HIV, but someone who does know, takes their meds, has an undetectable viral load, and takes precautions can be prosecuted. Does ignorance=bliss?
    Please think about these questions and then talk with someone in HIV prevention and advocacy.

  32. Philip Wester says

    Ernie:
    It matters not if some people do not know their status or lie. It matters not. If you know you’re positive, you have a legal or at least moral responsibility to notify your potential partners.

    The burden shouldn’t be on the negative partners to ask, it should be on the positive partners.

    Does this potentially give people a false sense of security? It matters not.

    In the case of someone who lies:
    * They are a liar who lies. They are despicable. But it is inconsequential to the argument.

    In the case of someone who is unaware of their positive status:
    * So?

    It’s my right to be able to screen out people who know they are positive. If it’s someone who lies, they are breaking the law.

    IT MATTERS NOT what other people do. If YOU know you’re positive and CHOOSE not to disclose your status, you are a DESPICABLE human being.

    I screen my partners. Heck, I rarely ever have anal sex at all. But it is MY choice to NEVER engage in sex, protected or otherwise, with people I know to be HIV+.

    And I live in a country where people generally have no problems disclosing that status.

    There is NOTHING wrong with the law. You need to get rid of the stigma. But the way to that is NOT to decriminalize not disclosing one’s positive status or making excuses for people who knowingly don’t!

  33. says

    Apparently some people think they are entitled to live in a world where there is no threat of HIV at all.

    There are two ways to accomplish that:

    1. Never have sex again.

    2. Build a time machine and go back to the 1950s.

    The rest of us will take responsibility for our own sexual choices. Know the risks and take precautions. Don’t stigmatize others for things you yourself should be taking precautions for.

    Thank you Ari, Ernie, and the non-paranoid folks.

  34. NN says

    @JHT
    I agree that it is important to protect yourselves.When it comes down to it, you can only relay on yourself and your actions. And it’s important to know that it is far from veryone who is HIV +, is people who has had many sexual partners (or drug addicts, who have shared dirty needles), because that it`s not true. We hear about people who have sex for the first time with his/hers LT girl/boyfriend, who has been infected with hiv+.

    All I know is that it can happen to us all( gay or straight), but that we must be better to not put ourselves in situations that increase the risk of us to get infected. Practicing safe sex and be more careful with one night stand (they who do that, I don`t meant this as judgmental, just that I’ve never done that )

  35. says

    @Carl..Good points…
    On a side note to this discussion..the next big wave which people don’t ask about and rarely get tested for is HepC…you can know everything about HIV with every partner you have (liars or not) but people are NOT getting tested for this and there are rarely symptoms until its too late…its starting to show up in the big cities here in the US just like HIV did in the early days..stay informed and safe…just on FYI everyone..

  36. Oz in OK says

    Hmmm… such moral absolutism and hysterics in demonizing the HIV+ community is usually reserved for the fundamentalist crowd screaming about us in general – sad to see it here.

    Fortunately, Ari and the lawyers at Lambda Legal will be working in a court of law, where such histrionics are ineffective.

    His article does a good job of laying out the issue, how the law overreaches itself (itself based on hysteria and paranoia about HIV). Hopefully this will be overturned and a more measured series of laws will replace it soon.

  37. napro says

    The sex is NOT consensual if one party is withholding valuable information. It’s not your place or that of the HIV+ guy to dictate another individual’s level of comfort. So because people lie we should all forgo normal human decency?

    –No one is advocating unprotected sex with strangers regardless of status. Condoms should be at all times when in a non-monogamous relationship. But failure to disclose your status robs the other party of entering a consensual act.

  38. NN says

    @Carl
    “9.) Those of you that would not sleep with someone with HIV, could you even be friends with them or is the stigma too great?”

    I work within street prostitution and drug addicts who use needles.I behave towards them like everyone else. And I have no problem to be friends with people with Hiv, to hug them, use the same knife, fork, sharing food, use the same glass, give them the closeness and physical contact etc.

    The only difference is that I would not sleep with them, not because of the stigma. but because of that I would not put myself in unnecessary risk to become infected.

    If I had fallen in love with someone who was HIV +, maybe I had seen it differently after we had get to know each othervery well?. But since that has not happened, I do not know if I would then changed my mind and wanted to sleep with someone who was HIV +

  39. Andrew says

    You are responsible for you! Don’t assume that because someone is not discussing their status that they are negative. Don’t assume that just because someone says they are negative that they don’t have HIV, they may not know. Don’t forget there are other STDs out there besides HIV. Don’t want HIV, then use a condom each and every time! Can’t tolerate the possibility that you could unknowingly have sex with someone who is positive but not disclosing….then don’t have random hook-ups. Don’t do anything you are not completely comfortable doing! Don’t have sex when you are really drunk or high as you may be less likely to use protection! Talk with your sex partners about the importance of being safe regardless of HIV status. YOU are responsible for YOU!

  40. says

    Philip, thera is no point going round and round on this, but all the things you insist “matter not” in terms of the law in fact matter a lot in terms of real life protection of yourself. You should absolutely avoid having sex, even protected sex, with any one whose status you don’t know for sure because it makes you uncomfortable. That will include most people. Then it becomes your responsibility to decide knowing that laws, such as the one Sweden has, are both controversial (a quick Google search reveals just how controversial) and ineffective.

    I applaud HIV+ people who are open and honest about their status (it is the right thing to do), but there is no practical guarantee that a stranger who says he is negative is actually so, so everyone should make their own risk assessment accordingly. It would be nice if law could ensure risk-free sex, but it can’t, and the best way to do that is to protect yourself via common sense. Even if the responsibility shouldn’t be on the person who thinks or knows he is negative (I believe both have responsibility), it is in the best interest of that person to TAKE that responsibility. Sometimes being “right” is less important than taking care of yourself regardless of your sex partner’s behavior.

  41. TedinSac says

    It’s disheartening to see so many people defending the right of an HIV+ person to knowingly or negligently disclose his positive status to a potential sex partner.

    I don’t care how low your viral load is, or that you wore a condom. Any person with an STD has an obligation to disclose the same to any potential sex partner, PERIOD. People have a right to make informed choices about who they are having sex with, which includes knowing if the other person has HIV. An infected person does NOT have the right to make the risk assessment FOR the other person, PERIOD.

    These laws are about informed consent, which everyone has the right to have.

    It has nothing to do with “criminalizing HIV-positive community” as the title of this post suggests. There is no law which says HIV positive people cannot participate fully in civic life. There are laws that require an HIV+ person to disclose his or her status before having sex with someone because the virus is transmittable. Accidents happen. The other person has the right to know the facts before consenting to sex where a broken condom can lead to infection, PERIOD.

  42. TedinSac says

    It’s disheartening to see so many people defending the right of an HIV+ person to knowingly or negligently disclose his positive status to a potential sex partner.

    I don’t care how low your viral load is, or that you wore a condom. Any person with an STD has an obligation to disclose the same to any potential sex partner, PERIOD. People have a right to make informed choices about who they are having sex with, which includes knowing if the other person has HIV. An infected person does NOT have the right to make the risk assessment FOR the other person, PERIOD.

    These laws are about informed consent, which everyone has the right to have.

    It has nothing to do with “criminalizing HIV-positive community” as the title of this post suggests. There is no law which says HIV positive people cannot participate fully in civic life. There are laws that require an HIV+ person to disclose his or her status before having sex with someone because the virus is transmittable. Accidents happen. The other person has the right to know the facts before consenting to sex where a broken condom can lead to infection, PERIOD.

  43. TedinSac says

    Follow-up — my above comment assumes the HIV+ person knows his status. To the extent he does not know, it is up to the other person to make the risk assessment based on information available.

    My point is that people who know their positive status, or reasonably should know it, should disclose.

  44. TedinSac says

    Follow-up — my above comment assumes the HIV+ person knows his status. To the extent he does not know, it is up to the other person to make the risk assessment based on information available.

    My point is that people who know their positive status, or reasonably should know it, should disclose.

  45. PDX Guy says

    All those questions about the health status of your partner are of course true. You can never know 100% what another person may have. However, if the other person knows, all of that doubt goes away. You have a right to know that. I agree with the “informed consent” sentiment and agree that it should remain a criminal action to not disclose when you have knowledge that you are willfully not disclosing. AIDS is still a terminal, incurable disease that is only treatable with a lifetime of aggressive drug therapy.

  46. phluidik says

    @Carl
    1) Responsibility is a two-way street. Someone who is negative can’t inflict the same kind of harm as someone who is positive. Ergo, the person who is infected has a greater responsibility to inform than someone who is negative from a harm-prevention perspective. However, this does not negate the responsibility someone who is negative has to themselves to discuss risk before playtime.
    2) Yep. Absolutely.
    3) Personally, I ask about everything.
    4) Yep. Their response serves as an indicator towards responsibility, which goes towards risk evaluation.
    5) Nope. Asking when they were last tested merely gives a hint at the risk I’m taking, and is not in any way a guarantee.
    6) Always safe.
    7) I don’t bareback, and I get tested every nine months.
    8) No, because that would be irresponsible, stupid, dangerous, and selfish.
    9) I’ve no issues playing safely with someone who is positive, so long as I know the risk going in and trust they will do their best to play safely with me. I enjoy many friendships with people who are positive. Some of them I know to be responsible and capable of helping to protect me. Those that are not responsible, I choose not to play with.
    10) We’re not talking about criminalizing people who have HIV as a means of prevention, we’re talking about punishing the harm that failure to disclose can cause and whether or not that punishment is warranted. Certainly, not disclosing erodes prevention to a degree, but I’m not clear that that is what this conversation is really about.
    11) It is truly difficult to know your status for certain, especially given the replication period required for some viruses before a test would show anything conclusive. However, someone who doesn’t have some level of certainty about their STD status, in this day and age, is at best irresponsible and negligent at worst. Everyone should discuss risk potential before play, regardless of current known status. That’s called being a responsible person. Folks that know they are positive and do not disclose, are making a decision that knowingly inflicts emotional (and in the case of actual transmission, physical) harm on their victims. It is these harms that these laws attempt to address. This is different than someone accidentially exposing someone else to a disease because they didnt know they were a carrier, so long as the carrier has taken all available measures to be responsible and does the right thing (i.e. inform recent sexual partners, alerting new sexual partners) once their status changes.

    Merely having HIV (or any disease) is not a crime. Failing to tell your sexual partners, limiting their choice to engage that risk, and putting them through hell b/c you are irresponsible, is.

  47. my name irrelivant says

    “sex is powerful” –I’m rolling my eyes right now.

    Its not powerful enough to avoid consequences; those that practice safe sex are moral enough to inform partners of status… those that aren’t in either case, are obviously wrong… what is the problem with laws enforcing this idea? We can also make an argument for rape not enforceable because its impossible to prove… but that doesn’t mean that law shouldn’t exist. Its the same deal, sex crimes are notoriously difficult to prosecute and criminalize, but it doesn’t mean that it shouldn’t be done.

  48. NVTodd says

    It is absolutely insane to put people on HIV meds who are not HIV positive.

    It’s the height of irresponsibility.

    This is just one step towards mandatory forced medication of all gay people.

    If there’s a “stigma” towards the “HIV Positive Community”, maybe the “HIV Positive Community” should stop spreading HIV.

    It’s not that difficult, just stop spreading STD’s and the risk magically disappears !

  49. things that make you go hmmm says

    Thank you to all the commentators here, who have cleared up a serious issue for me. Knowing your HIV status is a total bummer! The legal regime is crazy, people treat you like a monster, you get saddled with the unilateral moral responsibility of disclosing, even if nobody asks, and taking reasonable risk reduction strategies makes absolutely no difference whatsoever. Why bother! Turns out ignorance isn’t bliss – its immunity. Canceling my appointment at the clinic right now!

  50. GregV says

    I would love to see Plendl (the accuser) cross-examined to find out why he did not ASK his hook-up about not only HIV but a whole host of other infections, and what kind of answer would have been acceptable to him.
    What if Plendl had asked, and the answer was (as a hypothetical example): “I was tested for HIV two months ago and I was negative. Since then, I have had receptive anal sex with two strangers, both of whom did not have HIV as far as they knew, and both of whom carried herpes but were not experiencing an outbreak at the time. Both also carried HPV but were asymptomatic at the time. The condom broke in one case, but he did not ejaculate.”
    Would he have asssessed that answer (from a STRANGER) and decided that the risk was acceptable? I mean, is “I have been tested and know that I am HIV+” the ONLY answer that he considers puts him at risk? If he thinks so, he is an idiot.
    The fact that he had anal sex with a stranger should be enough proof that Plendl himself was deciding that there was risk, and that he was choosing to take the risk. He has no one to blame but himself for his months of agonizing over whether he might have been infected (which he was not).

  51. TedinSac says

    To all the people who say they are just going to stay ignorant of their status to get around these disclosure laws — please stop. You’re not being helpful to anyone.

    People need to know their HIV status. If you are positive, you’ll need to get treated — your life will improve dramatically if you can get on a medication regimen — the sooner the better. When it comes to HIV, ignorance is not bliss, it’s death.

    Also consider this — if you have HIV and refuse to learn your status, you won’t know to seek treatment. And if you don’t get treated, you won’t need to disclose anything because your physical appearance will say it all. Grow up!

  52. TedinSac says

    To all the people who say they are just going to stay ignorant of their status to get around these disclosure laws — please stop. You’re not being helpful to anyone.

    People need to know their HIV status. If you are positive, you’ll need to get treated — your life will improve dramatically if you can get on a medication regimen — the sooner the better. When it comes to HIV, ignorance is not bliss, it’s death.

    Also consider this — if you have HIV and refuse to learn your status, you won’t know to seek treatment. And if you don’t get treated, you won’t need to disclose anything because your physical appearance will say it all. Grow up!

  53. Jeff Beckel says

    Agree with those above who object to the dishonesty of Ari Waldman’s characterizing this as criminalization of people. It isn’t. Ari is pretty much a liar and loses all credibility with the title of the post.

    On the obligations of the negative partner to assume his partner is pos and/or to practice safe sex. Sure, he has that obligation. He owes it to himself. But that has nothing to do with the moral and legal obligations of the positive partner. Those obligations are independent. They exist whether or not the negative partner does the right thing. The negative partner can be naive, dumb or unduly optimistic. Doesn’t matter. If you have sex and don’t disclose, you should be prosecuted.

    It is interesting that a lot of the apologists for this criminality assume that the lives of gay men consist of a series of hook-ups with people they don’t know very well. Believe it or not, a lot of gay men get to know their partners first. Disclosure can thus occur in a much safer, trusting atmosphere.

  54. says

    I fully agree @Jeff that all men would be well served by getting to know their partners before having sex and by having an honest discussion about status in a safe, trusting atmosphere before going ahead. Everyone would benefit from this. And then they should have safer sex because, laws aside, the most effective way to prevent HIV transmission is to have safer sex, always. Most HIV transmission is not the result of guys like Rhoades failing to disclose and then taking precautions, but, rather, the result of two people silently agreeing to have sex without precautions.

    But, just as you say legal obligations are independent of real life behaviors, so too are real life behaviors independent of legal obligations. In that light, some of us believe that criminalizing men who don’t disclose but practice safer sex is not an effective tool for reducing HIV transmission. Such criminalization could well encourage the opposite: men not getting tested because if you don’t know, you can be in denial and safe from the law.

    It’s not being an apologist to look at health laws in a nuanced way and make an informed evaluation of their effectiveness in accomplishing the goal of less transmission of HIV. If a law is thought to be ineffective, it’s important to debate it from both a legal, moral, and practical standpoint.

  55. Philip Wester says

    The Swedish laws are NOT controversial at all. Not in Sweden.

    Yes, it is the responsibility of all negative persons to keep themselves safe, but this assumes all other parties are honest about their carrier status.

    No matter what, it still falls on the HIV+ (or whatever other STDs they carry) to disclose their status, no matter how uncomfortable they might feel about it or how much sex they might lose out on once they disclose their status.

    Because that’s what it all comes down to: The HIV+ person’s right to get as much as sex they want without the other party turning them down for fear of catching HIV.

    I have no problems being friends with people who have STDs. I just don’t want to have sex with them. And it’s their responsibility to inform me of their status (I shouldn’t have to ask all partners “Do you have and that disease?”. In fact, I don’t have to because in Sweden, it is ILLEGAL for them not to tell me and NOBODY complains about it (in big groups)).

    I really don’t get the outrage on this. Why are so many defending an HIV+’s right not to disclose their status? They try to work around it by saying “It’s still everyone’s responsibility to protect themselves”. Well, yeah, but the positive party has to inform their partners so they can make the choice themselves. It is not up to the HIV+ party to decide whose life they can gamble with.

    Then the excusers go for the “Stigma” defense. What stigma? Are HIV+ people being shunned by society and their HIV- peers? Or do you simply mean “They’ll be less likely to find sexual partners”? Well, tough. And SCREW YOU for defending their right to GAMBLE with people’s LIVES just so they can get laid.

  56. says

    A) Speaking as a mental health professional who has worked for many years in HIV issues, one of our voiced concerns is that the way the laws are set up–if you aren’t tested, and don’t know your HIV status you won’t be thrown into solitary confinement the way Mr. Rhoades was–which doesn’t encourage people to get tested.

    B) Do people who are known to be HIV positive get stigmatized by people who aren’t seeking sexual partners? Ever visit gay sites like Towleroad or JoeMyGod, NewCivilRightsMovement, etc?- or any anti-gay sites, which fundamentally believe you are automatically HIV positive if your’re gay, and your only interests involve pedophilia?

  57. R2 says

    @Phillip Wester:

    I’d be too afraid to be in a relationship with you. What if I get infected with hiv or hep? (Assume non-cheating, say a healthcare worker or rape.) Or ignoring sex, say TB. Or whatever. You get sick, and then dumped/abandoned! People like you should disclose “not in sickness, only in health”.

    I do believe disclosure is the best. And willing ignorance is bad. But your fear makes me hope I never meet someone like you. Your words make me think of all those patients abandoned by their partners for getting cancer or MS.

  58. Philip Wester says

    @R2:
    If we had a long and loving relationship I felt was worth it, I would stay. We might cut back on the sex, though.

    But it is still my choice, just as it is YOUR choice not to get into a relationship with me.

    I never said that I shun people with HIV. In fact, I said the direct opposite. I never said I would automatically dump my partner like a sack of potatoes if they ever contracted HIV.

    But say I go out on a date or a hookup. Or someone sets me up. We barely know each other. We don’t know if this date or hookup will even lead to a relationship of any kind. He tells me he has HIV, I decide to protect myself my not actively pursuing a relationship with him.

    That is MY choice. And you have NO RIGHT criticizing it or trying to make me feel bad for making it.

    Also, I live in Sweden, where exceedingly few people have HIV or ever contract HIV through non-sexual means. The chances of a scenario such as the one you propose occurred as slim to none. But if one such scenario would arise, I would likely stand by my partner. But if I didn’t, it’d be my choice.

    And NO, it is NOT the same thing as abandoning your partner for contracting cancer of MS. Cancer and MS is NOT contagious. I will NOT magically catch cancer or MS if I stay with my partner through it. I CAN contract HIV, no matter how careful I am, if I have anal sex with someone who has HIV, though. I can sleep with MS and cancer patients all day and night for 20 years straight and NEVER “catch” MS or cancer from them.

    Stop using strawman arguments to defend non-disclosure or to criticize my position. You seem reasonable. Don’t diminish my view of your intelligence by throwing a strawman argument into the mix.

  59. TooBoot says

    I find that most negative men do not understand what risk means. They become hysterical when assessing risk, thinking that there is no way to stay safe; “condoms break,” or “you SAY you wouldn’t do anything to harm me, but what if you’re wrong, what if kissing really does lead to sero-conversion?” HIV positive people have had to become experts at risk, not only what to do to avoid giving HIV to others but also what put them at risk with a compromised immune system. I personally think that all negative guys should have to disclose their statuses so that positive people can decide whether they want to deal with their hysteria, paranoia, and hypervigalence around sex. I know it cuts off a great number of potentially great people, with potentially loving hearts, and talents and minds but hey, it would be worth it not to have to deal with their potential irrationality and possibly them accusing me of a crime. It is MY right to know if you are negative, and don’t you DARE belittle MY right to know, even if I don’t live in SVEEDEN.

  60. Philip Wester says

    Tootboot:
    Go to Hell. Either you’re a troll or someone who is HIV+ who is annoyed at people turning you down for sex because of your status.

  61. TooBoot says

    Philip:
    LOL, you go to hell. I’m just annoyed at your black and white, lack of empathy. No one has ever not had sex with me because of my status.

  62. Philip Wester says

    What is wrong with people nowadays, feeling so entitled? Someone refuses to have sex with HIV+ people because of the risk of infection and they’re villains for not seeing “the greys” and not being able to “empathize”.

    Because, what? HIV+ people are entitled to sex with anyone they want?

  63. Jeff Beckel says

    To Ty Nolan and others who complain that these laws may dissuade some people from getting tested because learning their status might put a crimp in their sex romps.

    Two responses:

    – First, if you don’t get tested, you can’t treat yourself and get access to meds. A sociopathic, selfish HIV+ person who cares nothing for the health of his partners probably will care about his own health. The penalty for intentionally remaining ignorant may be your own health, if not life.

    Second, the state has the option of expanding these laws to encompass scenarios where a defendant deliberately avoids learning of his status. There is ample legal precedent for attributing knowledge to a defendant who can only claim ignorance by virtue of his consciously avoiding learning of the facts.

  64. TooBoot says

    And again, while the reactionist and strident opinionist, Philip Weber, runs around like Chicken Little SCREAMING about disclosure, he totally misses the point of the article which is that as the epidemic has evolved with the development of life-saving medicines and consequently so have the nuances of transmission, which is all about grays or in this case the legal burden of “beyond a reasonable doubt.”
    Yes, Weber, you display a total lack of empathy when you do not consider the humanity surrounding how some struggle with stigma and its affects on how we disclose status. We are people and fallible, and moral and not everyone is out to get you or take away your rights because they don’t disclose.
    Honestly, and I say this even though it”s none of your effin business, but I always disclose when I meet potential partners (notice how I didn’t say sex?) because I don’t want to have to deal with the squeemish, and no one I have every disclosed to has rejected me, but after hearing some of the attitudes like Webter’s, it makes me want to never disclose again. In Weber’s case as sexually centric as he seems to be, it would be hard to prove it was any one person if he did sero-convert.

  65. Scott says

    So if someone brings a weapon, knife or gun, with him to go confront someone he is angry with.. and in the altercation the man stabs or shoots the other person but does not kill them, should he just be set free then with no punishment? Absurd. This man, and every man who is HIV poz should feel the necessity to inform all of his sexual partners prior to sex. I find this article and every other article suggesting things like viral load and immunity make any difference completely ridiculous. If forcing hiv poz guys to be honest about their status before sex is too much for them, embarrassing etc.. then maybe having sex is too much for them as well..

  66. TooBoot says

    Scott your comparison is exactly what prosecuters use which is that of an intent to harm, but again, you missed the point of the article, which was to dispute those intents in most cases. No one is arguing about the responsibility of disclosure, but sex is not so black and white. You have to prove intent.

  67. Philip Wester says

    Tootboot, English must be your 29th language. Or just reading comprehension at all since you keep referring to me as “Weber/Webster” when there’s no B anywhere in my name.

    The punishment he received was too severe. I have said this multiple times in the comments of this article (and also the previous article on the same subject).

    But he DID commit a crime. It does not matter that the risk of transmission was minimal, the risk EXISTED. And he DENIED his sexual partner the RIGHT to know his status in a state where he is REQUIRED BY LAW to disclose his status.

    Now I don’t care if the chances of transmission is 0.0001%. If you don’t disclose your HIV+ status, you’re a selfish prick who needs to be criminally charged.

    Why you’d defend his BEHAVIOR is beyond me. He knowingly committed a crime and for what? Sex? He likely knew or suspected he wouldn’t get any if he’d disclosed his status, so he didn’t. In a state where this is a crime.

    There are no grays here. There is absolutely NO drug on the market that lowers the risk of transmission to a big fat 0%. There is ALWAYS a risk. And it is the HIV+ partner’s OBLIGATION, morally if not legally, to disclose their status so the HIV- partner can make that choice for himself knowing all of the facts.

    End of story. The fact that you’re so vehement in your defense of this clown and so antagonistic to anyone who would rather not sleep with anyone who is HIV+ implies that you have in fact been turned down after revealing your HIV+ status, have had cloe shaves or at least that you have a great fear of this happening.

    Apparently, YOU’re not one of the selfish pricks I criticize. You DO disclose your HIV+ status prior to sex (or, apparently, prior to even dates), which I commend you for. So why are you so hostile towards me? And defensive? Or even mad at all?

    This is the equivalent of a Christian screaming “I’m a tolerant Christian!” when someone criticizes the fundies.

    I choose to protect myself as much as possible. That includes screening out anyone who has a long-lasting and life changing STD. So sue me.

  68. TooBoot says

    Sorry about misspelling your name, my eyesight is not what it used to be, Mr. Wester. To be honest, I have not been outwardly rejected for my status, there was a scare once when a condom broke, but PEP was used and my viral load was undetectable, so my boyfriend at the time did not have much chance of sero-converting, but after that he DID leave me and that did hurt.
    But the hatred with which you imbue your condemnation of anyone who fails to disclose suggests that you too have been hurt or damaged somehow and are projecting your contempt, reaching further than just this court case.
    I truly hope that the next person accused of criminality because he did not disclose because he was afraid of rejection has a defense lawyer that is able to question and challange the nuances of transmission for his cause and that the defendant gets only a minor sentence especially if transmission didn’t occur. This would help to send a message to those who do not inquire about sero-status that it is equally their responsibility to insure sexual safety.

  69. says

    Looking beyond the indignation and holier-than-thou comments, like all societal issues, it is never as easy as black & white. Many folks are so locked into the idea about blame and fault they can’t see the bigger picture.

    Yes, if you are an HIV+ person you have an obligation to disclose your status. I haven’t seen anyone here argue against that. But that isn’t the argument here. Many of these laws were broadly written and vague based on a lack of knowledge when they were written. As such, they serve to discourage people from getting tested and knowing their status.

    Of course, if you are HIV-, and wish to remain so, you also have an obligation to ask the other partner’s status before you engage in sex. If you don’t, then the fault is equally yours. It isn’t a matter of who is more right or more wrong. The issue is protecting yourself.

    The level of risky behavior you engage in should not be contingent on how much you trust a complete stranger. Whether the person “tells” you he is negative is irrelevant. If you wish to remain negative, then you should always engage in behavior that you feel comfortably safe. The level is often different for different people.

    This is a clear example of when ignorance can harm you. You are at a much higher risk of contracting HIV from a person who does not know their status than someone who knows their status and is on treatment. Writing laws; however well meaning that discourages people from getting tested is counter-productive and dangerous. Which is worse, the few who don’t always fess up but still take precautions or all those who don’t know and spread it to others at a significantly higher rate?

  70. R2 says

    +10 to Moby, that’s the big issue.

    @Wester: Everyone has the right to choose who they have any relationship with. I just think that including HIV status in the equation makes you a worse person, and a bit of a coward.

    From: http://thehairpin.com/2012/04/the-perks-of-herpes

    “In a world full of infinite partner choices, herpes had narrowed mine to the understanding, the open minded, the risk takers. I am now confined to partners who think my awesomeness eclipses my cellular flaw — so instead of killing my love life, herpes has weirdly deepened it.”

  71. pozguy says

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  72. Local Nihilist says

    If you don’t ask about status, I assume you’re HIV+ already or don’t care about getting it. Why should I assume you’re not actively suicidal? Besides, we’re all dead in the long term anyway, no need to overthink it. The transmission odds with an undetectable viral load with a condom on are infinitesimal. Makes driving on a public road seem dangerous.

  73. Dan B says

    Mr. Waldman,
    If your legitimate concern is that these laws paint with a broad brush, why do you use that same brush yourself? Nowhere in this article do you name a SPECIFIC state statute or demonstrate how any SPECIFIC statutory construction constitutes an overly broad judicial overreach. Instead you launch into a broad attack of ANY law that could be used to prosecute transmission of HIV. What was the the point of invoking the aggravated assault case? I presume you don’t intend to decriminalize aggravated assault? What about criminal negligence? If you have a case, make it.
    Please explain to me the constitutional difference between requiring HIV+ people to disclose their status and requiring a corporation to put certain labels on its products. If a grower has to disclose whether or not his fruit is organic, does that “criminalize” eating?
    As I understand it (and correct me if I am wrong) The 5th amendment & Miranda laws are the only clear constitutional limits on what the government can require a person to disclose. That gives voters the right to make some very broad disclosure laws. This latitude is necessary for the prevention of FRAUD, which is fundamentally inimical to LIBERTY.

  74. Philip Wester says

    @R2:
    I have never had sex with someone who is HIV+ as far as I know. Mostly because I rarely date or go on hookups. But anyone who chooses not to disclose their status because of a fear of rejection is a COWARD, SELFISH and CRIMINALLY NEGLIGENT.

    Why are you defending that behaviour?!

    And why are you criticizing me, calling me a coward, for having a sexual preference against people with HIV? It’s much more logical and less superficial than “I only date black guys” or “I only date blonde guys”. At least my preference is rooted in wanting to stay healthy.

    No matter the viral load, no matter the precautions, there is no way to limit the risk of infection to a big fat 0%. Until that happens, you have NO RIGHT to criticize me for my preference or act as if I’m some kind of villain.

    Which is laughable when you also defend someone’s choice not to disclose their HIV+ status and would rather the law not criminalize it (no matter how much you try to sugarcoat it, this shines through in your posts. It’s all “grey” and “Low viral loads” and “Almost no chance of sero-conversion”. “Almost no chance” = “A chance”.

    You don’t like people like me risking infection by dating HIV+ people or people like your ex dumping their HIV+ boyfriends because of infection scares? Tough.

  75. Todd says

    God, I am so sick of this feel sorry for me because I might not get to f#CK the hot twink who’s $hit faced at the end of the bar because he doesn’t understand HIV transmission realities and I don’t want to disclose bull$h!t. If a person cares so damn little about the person they are about to have sex with than to tell them,”Hi I’m not going to be able to drop that load up your a$$ tonight because I am Poz” than maybe they should be prosecuted when they don’t. This isn’t diabetes, a cold, or a rash. This is possible HIV transmission and people should be told! Point blank! Any body who supports feeling sorry for some one who willingly did not disclose should meet with a person who got it from a partner who didn’t disclose…like me. That SOB did not care about me, my family, my friends, or anyone else who has supported or would be hurt by my death. So, go on keep protecting a$$holes like him. And don’t give me the it takes two to tangle BS. If I had ever been told by anyone prior to my meeting this guy he could have infected me I would have said “No”. I ABSOLUTELY SHOULD HAVE HAD THE OPPORTUNITY TO SAY NO!

  76. GesundeMenschenverstand says

    How does one prove a negative beyond a reasonable doubt? That is if the defendant says “yes I told them I have HIV” how can we prove that he didn’t beyond a reasonable doubt? People lie all the time, so that’s a reasonable doubt.

    Other than a videotape of him saying “no, I don’t have AIDS” which would be extremely rare, then the only feasible way would be for the prosecution to appeal to the juries emotions and get them so riled up that they forget what the word “reasonable” means and come to the illogical conclusion that since their emotions are so strongly in favor of the plaintiff that the doubt that the plaintiff could be lying is “unreasonable”.

    And if prosecutors don’t do that then the only people who will ever be convicted are people who actually own up to the crime, so all uncaring liars go free and all the honest apologetic people go to jail.

  77. Markt says

    If you are having sex with someone you just met, there is no need for either to reveal status. There is no relationship. It’s more of a transaction and we all know that it’s always caveat emptor (buyer beware).

    People don’t come with labels noting all the dangers like an over-the-counter drug. Whether someone discloses or doesn’t disclose you can’t really know the truth so why bother having the discussion? It’s a stranger your having sex with and you’re courting danger. I know 2 people who were murdered on one night stands. I guess if the perpetrators were ever caught they should have done a longer sentence for not disclosing that they were going to kill them. Note that the sentence for not disclosing is way longer than manslaughter.

  78. NVTodd says

    When they stakes are YOUR LIFE, it really doesn’t matter what the law says people SHOULD do.

    Put it this way, pick something you love. Perhaps your entire wardrobe.

    Now, are you going to have sex with a stranger, and not ask him his status, AND JUST BELIEVE HIS ANSWER, AND CHOOSE to have THE KIND OF SEX that is risky, on the off chance that he’s telling you the truth – at the risk of losing your entire wardrobe ?

    What I’m getting at is we seem to value our own lives less than we value things, less than we value intimacy, less than we value… Well, you get the point.

    What’s wrong with this picture ?

  79. TooBoot says

    And Todd I am so sick of people like you abdicating responsibility to everyone else but themselves. YOU had unprotected sex, period. It shouldn’t matter if your partner disclosed to you or not. You chose to have sex and that always carries risk, you DID have the opportunity to say NO: NO to RISKY sex, period. Deal with it!

  80. says

    There is a lot of erroneous information on this thread and I urge those interested to learn more about this complex issue. Most people, when they first are asked, think it should be a crime for someone with HIV not to disclose that fact prior to having sex. A lot of those people, perhaps a majority, change their mind after they learn more.

    1) These statutes and prosecutions rarely have anything to do with the degree of risk of transmission present (let alone transmission). The science doesn’t matter; they are about disclosure, not risk.
    2) While ~35 states have HIV-specific criminal statutes, they don’t have similar statutes concerning hepatitis, HPV, CMV, Epstein-Barre and other pathogens which sometimes, if left untreated, can seriously harm or kill someone. They hold HIV out in an exceptional way, creating a viral underclass in the law. Most people don’t think it is a good idea to create different laws for different people based on their skin color, gender, sexual orientation or genetic makeup, yet so many think that is ok based on viral status. That’s wrong.
    3) The laws were passed with the intent that they would reduce transmission. The evidence is overwhelmingly clear that they do not. There is a growing body of evidence demonstrating how these statutes actually further the spread of the virus, by driving stigma and, specifically, discouraging people from getting tested. Those advocating in favor of these prosecutions are supporting the spread of the virus.
    4) Someone asks for reasons why someone might not disclose. Here are a few: absence of significant risk, fear of stigma, loss of employment or housing, risk to personal safety and/or an assumption of accepted risk (especially in anonymous settings).

    If one agrees that the punishment and sentencing in these cases frequently is vastly disproportionate to any harm and if they agree that it doesn’t make sense to create different criminal laws for people with HIV than everyone else, then the core issue remaining is: What is the role of the criminal law, if any, in the context of sexually transmitted pathogens. We can’t just prosecute HIV because it is associated with an outlaw sexuality (and gay men, communities of color, etc.); for the justice system to be equitable we must treat like harms alike.

    Many people’s opinions on this issue have been shaped by hysterical, frequently inaccurate and highly stigmatizing media coverage of a few high-profile cases where someone is accused of showing a repeatedly reckless disregard for the safety of others (even if absent an “intent” to harm). Those cases exist, to be sure, but they are a tiny part of the HIV criminalization phenomenon.

    There was a time when people with HIV were seen as our brothers and sisters, people in need, and the LGBT community and others were willing to wrap their arms around them and provide help and support in difficult circumstances. Unfortunately, increasingly we are seen principally through the prism of our potential to transmit HIV, as viral vectors, potential infectors. That is painful and stigmatizing, a sad comment on our community and a sure way to make sure future generations will get infected.

    To learn more, go to seroproject.com. Sign up for our e-alerts, and we’ll keep you posted on the issue and the effort in various states to advocate for reform. Urge your members of Congress to co-sponsor Rep. Barbara Lee’s bill, HR 3053 the Repeal HIV Discrimination Act.

    Finally, Philip Wester (if that is your real name), you show a remarkable hatred towards people with HIV and either a willful ignorance of this issue or a malicious intent to mislead people. I haven’t seen such repeatedly mean-spirited commentary since the early days of the epidemic. Shame on you.

  81. DB says

    Let’s be clear. There is no circumstance in which an HIV-positive person should EVER be allowed to have sex with someone without disclosing his or her infected status. This should be an extremely grave felony. Yes, it should also be illegal for an HIV infected person to have vaginal or anal intercourse without a condom. The latter crime, unprotected sex, should receive life in prison in solitary confinement without the possibility of parole. The former crime, having sex of any kind without disclosing infected status, should perhaps results in 10 years in prison.

  82. caphilldcne says

    The reliance on mass incarceration in the United States is utterly tragic. We incarcerate more people per capita than the Soviet Union at its height – than China does now. The criminal law is the wrong way to handle this issue. If you’re gay and you have sex, you’re at risk. You need to own that. If you feel like you were wronged that’s what civil court is for.

  83. Jack says

    Sorry, Sean Strub. Your arguments are not persuasive. The disclosure laws allow the potential sex partner to assess the risk himself and make his own decision. No one gets to make that call for him. If the HIV+ person wants to argue “the science”, he is free to do so. If the risk is very low for a particular individual and for a particular sex act, then the partner might be persuaded to proceed. But it is his call to make, not yours, not anyone else’s.

    The state treating HIV differently than other diseases is not the moral equivalent of racial segregation. You might think so, but that is why we have debate, elections, and legislation. The world doesn’t agree with you. I personally think you are warped. But if you are so sure you are right, persuade your fellow citizens that HIV laws are like Jim Crowe.

    Lastly, if an HIV+ person fears repercussions for disclosure, he is absolutely free not to disclose. No one is forcing him to do anything. The trick here is that you don’t want to disclose and you want worry-free sexual hookups. Too bad. You don’t get that.

    In the past 5 years, I have donated $375 to Lambda Legal. I am writing them to let them know they will get no more of my money so long as they pursue this attack on these necessary laws.

  84. Alec says

    Ari, your post is interesting in a kind of abstract way, but it doesn’t have much of a relationship to the HIV nondisclosure statutes. Those statutes criminalize the failure to disclose the status of having tested positive for HIV at some point in the past to a sexual partner. They do not criminalize sexual acts that are likely to transmit the virus, nor do they criminalize acts that can potentially transmit the virus. The assumption in your hypothetical (“under a criminal statute that punishes anyone who uses a weapon in a way that is likely to do serious harm to the victim”) simply doesn’t capture the state of the law in most states with nondisclosure statutes. Most of the states passed these nondisclosure laws to comply with the Ryan White Act 1990 amendments that required a state to certify they had sufficient tools to prosecute invididuals who knowingly exposed their sexual partners to HIV.
    Any due process challenge to these laws would need an altogether different angle than the one you identified here. Additionally, you haven’t identified the biggest problem with these statutes, namely disincentivizing testing and allowing for opportunistic prosecution, either at the behest of faux victims who cry foul for some reason unrelated to nondisclosure or uneven or discriminatory use by prosecuting attorneys. When I wrote my undergraduate senior paper on this topic, the stats revealed that the overwhelming majority of prosecutions involved penile-vaginal heterosexual contacts. I think it is reasonable to assume that most cases falling within the range of prohibited activity are between men, though.

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