criminalizing hiv non disclosure (CRIMINALIZING HIV NON-DISCLOSURE, 2009)
Jun 9, 2009
I would like to forward my appreciation to Dr Rob for being so informative and unprejudice. I have one question and one rant. If I am aware that someone had intentionally and knowingly been irresponsible regarding their HIV status and as a result passed it on to me, is it your opinion that i should not pursue legal action? My beliefs on criminalizing non disclosure of HIV are the same as Dr Robs. I think that a more affective way to prevent further spread of the disease is to find better ways to promote regular tests for men that identify as gay or bi. Surely it must be common sense to want to get tested after unprotected sex rather than get sick first? I live in a state where it is mandatory to disclose your status. Although this is a legality i am sure that an informed judicial system would attempt rehabilitation and therapy rather than retribution where a positive person has had protected sex and not disclosed. On the other hand if the case was one where a HIV positive person of sound mentality had unprotected sex with a negative partner and knowingly transmitted the disease these people i believe should be jailed. I also believe that there are to many forgiving people out there that have not attempted legal action. It is very easy to get caught up in the politics and neglect the most important part of the whole thing PREVENTION. If anything should be mandatory in relation to HIV it should be that if you identify as gay bi ect it should be a legal if not ethical requirement to get tested at least once a year. If this was to ever eventuate it would be easy enough to inform and educate gay bi ect people without it necessarily becoming front page news. I think that this is a good a time as any to put pride out of the situation and begin some more radical attempts at not only prevention but treatment and a cure. The Hiv pandemic is the worst pandemic in human history. With this in mind the amount of action taken in regard to prevention and treatment is a drop in the ocean. Unfortunately i harbour some fairly radical views contradictory to the beliefs that i have, concurring with Dr Robs. One is that treating Drs of newly diagnosed people should be able to question the patient regarding previous partners and determine if or not one of those partner had acted irresponsibly with regard to their HIV status. The treating doctor should be able to pass on this information with or without the consent of either person to the appropriate law enforcement body. I dont think the issue is disclosure, if protection is not used it is a clearer act of recklessness. The liability is with the positive person, aware of there status, to have protected sex, take their meds, not to have rough sex and for fuck sake if your the top pull out!
Response from Dr. Frascino
Sorry, but I have to once again strongly disagree with several of the points you made in your rant/question. Cases of someone "intentionally and knowingly" transmitting HIV are extremely rare. If this occurred during nonconsensual sex (rape), I would absolutely agree: The perpetrator should be held accountable. (Rape is obviously a crime!) However, if the sex was consensual, I do not believe the "liability is with the positive person." The liability should be shared equally with both consenting partners.
Next, selecting out only "gay or bi" folks for testing doesn't make any sense. The virus could care less if you're straight as a lawn dart, gay enough to bottom for Liberace or bi-curious Republican Mormon! Your suggestions that those who identify as gay or bi be legally required to test annually or that physicians treating newly diagnosed people turn information over to "the appropriate law enforcement body" would be counterproductive. HIV is a medical issue, not a crime! If we are ever to gain control of the pandemic, we need to treat it as a medical condition and not a crime! Your "fairly radical views" would have the unintended consequences of fanning the flames of the pandemic, not snuffing it out! My views and comments on the negative consequences of criminalizing HIV nondisclosure remain unchanged!
"Criminalinzing" HIV Jun 7, 2009
I usually agree with most of what you post Dr. Frascino, but I don't entirely agree with your position on this topic. I do agree that in some cases non-disclosure may be unintentional and that safer sex precautions should be used with every partner, just in case. Here's my issue with your stance. Just a couple of examples I'd like your opinion on: One is the guy that had the video online (and guys like him) who was bragging about all the women in NY he had had sex with and had intentionally infected (allegedly to prove how stupid they were for not insisting on using protection). Second is a case I heard of where a man had sex with his girlfriend, got her pregnant, then still initially refused to tell her his status. What should happen in cases such as these where the positive person just doesn't care about their sexual partner? I believe it is this type of act that is criminal, not simply having HIV and being concerned about disclosing. What is your take on this subject? How do you separate and stop the people who just don't care about the lives of their partners from those who are good people that may have just made a one time mistake?
Response from Dr. Frascino
Thanks for your post. The issue of criminalizing HIV or HIV nondisclosure is complex and your arguments are the ones most often presented in support of criminalization. The reason I disagree is that criminalization of HIV nondisclosure has been shown not to be a deterrent for, as you put it, "people who just don't care." Criminalization of HIV nondisclosure has, however, been definitively shown to be a very strong deterrent to people getting tested. In the United States 20% of the estimated 1.1 million HIV-positive Americans have absolutely no idea they are infected. It is also now known that the majority of new infections originate from people who didn't realize or know they were infected. If we are doing anything to prevent folks from learning their HIV status, we are fueling the epidemic! It's also been widely proven that once someone knows their status, they are more likely to practice safer sex and decrease the risk of transmission to their loved ones and casual partners.
As for your two examples, the first is a person "bragging." Most braggarts are not telling the truth. The second example involves a single case. In both of these instances all partners voluntarily chose to have unsafe sex and therefore voluntarily chose to put themselves at risk. Certainly we need to do a better job of educating sexually active folks not to play sexual Russia roulette with their health. Where criminalization of nondisclosure is in effect, it can give folks a false sense of security because they assume their partners have to disclose their status. This is obviously not the case and can lead to unsafe sexual activity. A variety of criminalization laws have been in place in the U.S. and around the world. The scientific evidence shows they have not decreased HIV-transmission rates or been a deterrent to the type of morally reprehensible characters you reference in your post. In fact there is more significant and ever mounting evidence that criminalization laws may have the exact opposite effect. They are indirectly increasing new HIV-infection rates by scaring people away from getting tested!
Criminalization is a shame and absolutely useless (CRIMINALIZATION OF HIV) (CRIMINALIZING HIV NON-DISCLOSURE, 2009) May 30, 2009
I was reading the article about the Iowa man sentenced for 25 years because he didn't disclose his status. If we continue so nobody is willing to make the test and the consequences would be devastating. I know people that refuses to get tested because they fear stigma and criminalization. Why you can end in jail for not disclosing HIV but not for similar dangerous viruses like hepatitis or HPV which causes cancer?
Response from Dr. Frascino
I absolutely agree with you! Criminalization of HIV non-disclosure is counterproductive. I'll reprint below some information from the archives where I discuss this topic.
You miss the point entirely Feb 23, 2009
While I generally respect your advice and opinions...I must say that you miss the point entirely regarding disclosure. Clearly you are an educated and intelligent man, therefore I find it hard to believe you confuse "criminalizing HIV" and criminalizing the reckless endangerment of other peoples lives. The criminal act in the post "Curiosity Killed the Cat?" is the failure to disclose , not the fact the person was POZ. What is criminal is the act , not the disease, and I'm pretty sure you know that. Its plain common sense that if someone knows they are positive, then discloses after the fact, then they have committed a criminal and unethical act. The fact is condoms break, slip, and oral transmission does, albeit rarely, occur. If someone inquires as to status before sex, this is a risk reduction behaviour to try and understand the risks they are taking given the afformentioned accidents can and do occur. After a condom breaks is not the time to be forthcoming. As a gay man who has always had safer sex, I know of at least two times a partner did not disclose and I found out later they were poz, after lying and saying they were neg... Fortunately condoms were effective these times, but Im not so naive to think one will not eventually break or slip..ie: I now face a similar situation and possible exposure due to a condom slip where once again, someone lied and on pressing them I find out they are positive. With all the other efforts you make to treat and prevent this epidemic, Im surprised at your selective soft stance on such reprehensible behaviour. Being poz is not a ticket to be selfish and withold life endangering information. In post after post, I notice you consistently lambast bi and closet gay guys to be honest and tell thier wives about thier sexual escapades with men. You say its the "right thing to do." While we understand that its difficult living with HIV, its no easier for a straight man to tell his wife hes just had sex with a man than it is for a gay man to tell someone they are poz. We all agree that safety rests with the individual, but every indidiviual has a right to know the the risks they are taking given safe sex failure rates. The fact that 25% of people who are infected dont know is irrelavent for those that do. Its a pretty lame excuse to not disclose. All that statistic does is reinforce the need to use condoms no matter what someone tells you, because aside from the likely hood they will lie to you about it, they may not even know. If by not "criminalizing HIV" you mean de-criminalyzing non-disclosure I must object to this selfish idea. If a single life is saved from infection because a person had the opportunity to make an informed decision on thier own safety then the law has been effective. Most are not suggesting making being poz a crime. But if you carry a potentially life threatening infection and knowingly put others at risk then yes you are a criminal, and should be prosecuted as one. Lets dont attempt to make this look like a witch hunt for HIV poz people. Its a law in place to attempt to prevent a behaviour that clearly is criminal. Not to mention, its just the right thing to do.
P.S. Surprise me and have nerve to post a dissenting opiniom.
Response from Dr. Frascino
Why would it "surprise" you that I have the "nerve" to post a dissenting opinion (not "opiniom," by the way)? Actually I do indeed have a dissenting opinion and believe it is actually you that are missing the point!
Let's start with what we both agree on. Everyone should know their HIV status and should disclose their status before hitting the sheets. However, we all know not everyone knows their status and that disclosure doesn't always happen. Sometimes people are drunk or high. Sometimes they are caught up in the passion of the moment. Sometimes they may be in a noisy dark backroom sex club. Sometimes they may not realize they are a transmission risk because they misunderstand that undetectable does not mean noninfectious. The list of possible reasons disclosure didn't occur is quite extensive. Criminalizing nondisclosure may seem at first glance a good idea. But is it? I think not and there is considerable support (and science) to back up my opinion. Around the world there have been many cases of HIVers criminally prosecuted for conduct risking the transmission of HIV. Many of these cases were based on misinformation and prejudice and have lead to a miscarriage of justice. In addition, criminalization of HIV (or criminalization of nondisclosure of HIV) promotes stigma and discrimination. Branding a behavior criminal can and has led to the belief that HIVers are "potential criminals" and consequently a threat to the general public. Logically this can deter people from getting tested, even if they think they might be infected. This hinders HIV-prevention efforts. In essence criminalization of nondisclosure is counterproductive and undermines the public health message to know your status and avoid behaviors that increase risk of HIV transmission. Criminalization can also create a sense of false security among neggies. With criminalization of nondisclosure in place, John (or Jane) Q. Public could feel this reduces his risk and that he is now protected or at least at less risk for infection. In reality this is not the case. It's important to note most cases of HIV transmission occur between a neggie and HIVer who does not know he is infected. Consequently criminalization would be irrelevant in the vast majority of cases. In reality cases of malicious intent to infect someone with HIV are incredibly rare and could be dealt with under existing "reckless endangerment laws" that are already on most books. Some criminalization laws punish "intent" while others punish "knowledge." Careful consideration of this entire subject by many international organizations has all come to the same conclusion: Efforts to criminalize HIV transmission are misguided and counterproductive. For instance, check out the extensive report published by the Joint United Nations Program on HIV/AIDS (UNAIDS): "Criminal Law, Public Health and HIV Transmission."
You state that "if a single life is saved from infection because a person had the opportunity to make an informed decision on their own safety then the law has been effective." Sorry, again I disagree. Even if criminalization of HIV saves that single life (which is doubtful ay best) but ultimately results in undercutting gains we've made in the fight against the pandemic resulting in more people becoming infected because people are afraid to know their status and therefore don't get tested, the law, from a public health point of view, has been a colossal failure. Criminalization will drive the epidemic back underground, allowing the virus to spread undetected.
Bringing this back to your specific case, your behavior should not change whether your partner discloses or not. The same safer sex practices should be adhered to. You might say you'd electively choose not to have sex with HIVers. Fine. Tell that to your bedmates before you take their tighty whities off. But remember, 25% of HIV-positive Americans have absolutely no idea they are infected with the virus. Criminalization of HIV has never proven to be a determent to behavior. Rather, it has proven to be a determent to getting tested and knowing one's HIV status. Studies have shown once folks know their status they are much less likely to engage in risky behavior. Criminalization of HIV, including criminalization of non-disclosure, is NOT the right thing to do.
I agree with Dr Bob about criminilizing of non disclosure (CRIMINALIZATION OF HIV) (CRIMINALIZING HIV NON-DISCLOSURE, 2009) Feb 24, 2009
Hello, Dr Bob! Thank you for your always caring answers. I would just like to tell you about the situation in Sweden where I live. Sweden is the only country in Europe where its a criminal act not to disclose your hiv positive status before having sex. In Sweden it is also forbidden for an hiv positive person to have unprotected sex with an hiv negative person even though that person is consenting. It is always the hiv positive person that is responsible, even for the other persons health. The effect is, as you say, that people do not dare test themselves, but maybe worse, people fall ill in aids before their hiv status is discovered. In 2007 out of 71 cases of aids, 54 didnt know they had hiv. There are also cases of blackmailing, where negative ex partners threaten hiv positive ones. The situation as a hiv positive in Sweden is hence very insecure and indeed very stigmatized. I am not saying that I as am hiv positive person should be able to fuck around unprotected, but that there are problems with the criminalizing. Actually you dont have to post this, just wanted to thank you. :)
Hugs Mr J.
Response from Dr. Frascino
Hello Mr. J.,
Thank you for writing in with a real life example of the negative consequences associated with criminalizing HIV nondisclosure!
Curiosity Kills the Cat? Feb 18, 2009
One month last year I tested negative. A few months later I tested positive. My ID doctor assures me I was diagnosed during seroconversion. He dates the infection to up to six weeks before I got sick and was seroconverting. I made a list of my partners. A few guys in that period. I had no risky sex, no ejaculate in my mouth, no anal sex without condoms. Obviously there was transmission however.
One partner claimed, the evening we spent together, to be HIV negative. Impotent, he used a syringe to get an erection.
A few months after I converted, I learned through the grapevine he is HIV+. I asked to meet him a few times, but he avoided me. Finally we spoke on the phone. He confirmed he is positive, on treatment, and undetectable.
I asked him when he went on treatment and didn't get a clear answer. He was casual and rather creepy in his lack of concern that I was wondering if he transmitted HIV to me. When I asked why he had lied about his HIV status, he said it didn't matter.
I live in place where the police will investigate criminal transmission of HIV. If he is treated, the medical records may show when he was identified positive and when he bagan treament. Before I might file a legal complaint, I will ask him to show me his medical records because he seems too stupid or too unconcerned or too immoral to accept responsibility for his lie. Whether or not he infected me, who is to know without scientific investigation?
But, as I said, this could be asked for where I live.
I have two questions for you 1) My ID does not want to discuss anything that has anything to do with a legal issue - no comment. He says the risk is small for this person as a suspect. Is the risk small for an injected penis and lots of oral, but no ejaculation, and no unsafe anal sex? It seems small to me, too.
But if it was him, I think he should learn better practices concerning his impotence injections, and also always be honest with a partner. You know, if he was untreated when we slept with each other, maybe he had a high viral load and that led to transmission, somehow.
If he was ignorant about the small risk, I guess I can't destroy his life with a legal process.
Second quetion, would you as a treating doctor give impotence injection prescription to an HIV+ man? What would be your safe sex counseling for that? Would it matter to you if the patient were on HAART or not, to prescribe that needle?
Response from Dr. Frascino
Sorry to hear about your recent diagnosis.
1. I too would agree your HIV-acquisition risk was extremely low.
2. Yes, I would treat erectile dysfunction in someone with HIV disease. Safer sex techniques and advice would be the same as for anyone else.
While I strongly agree everyone should be forthcoming regarding their HIV status, I even more strongly disagree with criminalizing HIV.
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