Is failing to disclose my HIV status a crime even if we use condoms?
May 28, 2012
Is it against the law not to disclose your status the person you're engaging in sexual acts as long as you're taking the appropriate preventative measures (ie, on medication and using protections, etc.)?
Response from Ms. Douaihy
Thank you for the question. The answer really depends on your state. In a jurisdiction where "exposing" someone to HIV is "criminalized" by way of a specific legislative act or through targeted prosecutions under established common law, you may be held criminally liable for failing to disclose your HIV-positive status to your sexual partner irrespective of how fastidious your sexual interaction may be. In an extreme example, in some states where exposure to HIV is a crime, things like spitting or biting has resulted in prosecutions for HIV positive individuals even in the absence of actual transmission. This is the fundamental problem with criminal exposure laws. In general, they fail to consider the intent of the parties, the increased stigmatization of HIV and likelihood of actual transmission.
Now, notwithstanding the above, and importantly, this does not mean every failure to disclose HIV status by a sexual partner will result in a criminal prosecution! It depends on whether 1) anyone makes a complaint and 2) the state uses its discretion to investigate and prosecute that complaint. To learn more about criminal exposure laws and your rights as a person living with HIV/AIDS, I advise you to peruse the materials from The Center for HIV Law and Policy, linked below. Thank you for taking the time to write to thebody.com.
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