Legal action against HIV+ve person
Apr 5, 2006
I feel sympathetic for those suffering from HIV, but quite the opposite for those who KNOWINGLY INFECT others.
I am -ve but I've been involved in sexual relationship with a few over the years. Hence, I am wondering, if a HIV +ve person who knows he/she is +ve involves in unprotected sex, can he/she be subject to legal action? Can they be prosecuted according to the law? Since AIDS is a fatal condition, wouldn't it be equal to murder/man slaughter?
Could you please let us know what the law says?
Response from Dr. Frascino
I'll repost a few questions from the archives that addresses not only HIV disclosure laws, but also my personal belief that each of us, and not just those who are HIV positive, is responsible for preventing the further spread of HIV/AIDS.
Must disclose it is law. Dec 21, 2005
One should always disclose status. One of your fans wrote he is a gay 38 with hiv and his buddy topped him 10 times and he has not disclosed.He said the sex is so go he knows they will end up in bed again. How absurd" If you have hiv you must disclose your status you are in violation of safety and protection law. This person could later sue you in a court of law and would be awarded civil damages and criminal punishment.You are behaving selfishly and irresponsibly. Bob and I can not believe you did not really warn this person of the fire he is playing with.If You have knowlege that you carry a possibly deadly disease and can spread it to your mate this is murder.A virus lives and continues its devestation because we as a nation continue our unsafe practice of sex.Hiv will grow so out of control if people like you and your friend keep practicing unsafe sex acts.Lets be real I am not judgeing you guys but come on you dont want to live with knowing you have infected someone with a disease that is unaware of your status it will haunt you and strip you of your soul. If you disclose and your mate says ya I will take the chance then that is his decision and you can agree and let the cock fall where it may.
Response from Dr. Frascino
"HIV will grow so out of control if people like you and your friend keep practicing unsafe sex????" WHOA! Me practicing unsafe sex??? WHAT??? Might I ask where you dreamed up that fairytale? Come on, Dude (or Dudette), get real, or at least factual! Let me point out where I stand on this issue once again. I firmly believe each of us should take all the steps necessary to prevent further spread of HIV, the most important step being the proper use of latex condoms for sex. Notice I said, "Each of us," not just the HIV-positive folks! It seems to me the "ethically obligated to disclose" argument is of at lease secondary importance compared to consistent and proper condom use! Remember at least 25% of the estimated 1,000,000 folks infected here in the U.S. have no idea they are HIV positive! That's over 250,000 folks where disclosure isn't even an issue but safe sex remains of paramount importance. From a legality perspective, the issue is also more complex than your post would suggest. There are a variety of hodgepodge laws throughout the U.S. pertaining to HIV disclosure. Criminal convictions for exposing another person to HIV through sex have indeed occurred, but are rare. Even rarer are cases where consensual sex was involved! The laws that do exist are most often invoked for cases of sexual assault. Some states' laws are more lenient than others. Some involve "willful exposure," while others can prosecute HIV-infected persons under other criteria.
I continue to feel each and every one of us, positive or negative, need to take personal responsibility for our health and not try to shift the blame or responsibility for a reckless decision onto someone else.
You claim I am "behaving selfishly and irresponsibly;" however, if you continue to believe only those of us who know our HIV-positive status are responsible for stopping further spread of HIV and that "laws" alone will protect you from becoming infected, I'd suggest you look in the mirror to see who is being not only "selfish and irresponsible," but also shockingly irrational and dangerously self-deluded.
I'll post an article below that addresses disclosure laws and also repost my response to the question you referred to in your comments. Please reconsider this information carefully.
AIDS PROJECT LOS ANGELES
Barebacking & HIV Disclosure: What's the Law? by Brad Sears
If you are HIV-positive, dating and sex always involve the sticky questions of if, when, and how to disclose your HIV-status. Should you do it before you have sex? During the first date? Only if asked? Only if it becomes "serious"?
For each individual, the answers to these questions evolve from a blend of ethical, personal and practical considerations. People living with HIV have strongly advocated every position from "when you first meet" to "never."
At the point when you decide to have sex, however, the disclosure question is no longer solely up to you and your conscience. At that point, your decisions may have legal ramifications. Failing to disclose your HIV status to your partner may make you vulnerable to criminal prosecution or to being sued by your sexual partner. Criminal convictions for exposing another person to HIV through sex are rare. Since the beginning of the AIDS epidemic, more than 300 people have been criminally prosecuted for exposing another person to HIV. Only a fraction of these cases involve exposure through consensual sex. (The others involve activities such as biting, scratching and spitting, or violent sex crimes such as rape or forcible sodomy.)
Of the cases involving sex, most have been brought against female prostitutes (and not their male customers) or by military prosecutors against military personnel. Less than one-sixth of these cases have resulted in convictions, and more than half of the convictions have been against military personnel.
While most of these prosecutions have proceeded under general criminal laws such as attempted murder, aggravated assault with a deadly weapon, attempted manslaughter and manslaughter, a number of states have passed specific statutes that make it a crime for a person to expose another to HIV through sexual activity. California's "Willful Exposure" Law The law makes it a felony punishable by up to eight years of imprisonment for an HIV-positive person to "willfully expose" another person to HIV through unprotected sex.
The law is narrowly drafted, however, so that it only applies to individuals who intend to infect others with HIV through sex. It is designed to prosecute cases like one in New York, where one man infected more than a dozen young women, not to police every sexual encounter engaged in by people living with HIV.
To be prosecuted under the law, you would have to do all of the following:
1. Have anal or vaginal sex. You cannot be prosecuted for oral sex. As to anal and vaginal sex, the law applies equally to men and women; tops and bottoms. The law punishes exposing someone to HIV through these types of sex. Your sexual partner does not have to actually become infected.
2. Know that you are HIV-positive. You cannot be prosecuted for sex that you had before you knew that you were HIV-positive.
3. Fail to disclose your HIV status. If you disclose before insertion, you cannot be prosecuted.
4. Fail to use a condom. Even if you do not disclose, you cannot be prosecuted unless you have "unprotected sex." The law defines "unprotected sex" as failing to use a condom. This means that every inserting penis has to be covered. Even if you are on the receiving end, you have a legal obligation to make sure that your partner wears a condom.
5. Have the "specific intent" to infect the other person. Most likely, this element will prevent the statute from being used to harass people living with HIV. To be prosecuted, you have to engage in the sexual activity with the specific intention of infecting the other person with HIV. Just knowing that you had HIV when you had sex will not be enough. The law explicitly states that: "Evidence that the person had knowledge of his or her HIV-positive status, without additional evidence, shall not be sufficient to prove specific intent."
Because of this specific-intent requirement, the law is narrowed in scope to only cover individuals who want to infect other people, and who are probably expressing that desire. If you slip up one time, it's unlikely that you will be prosecuted. However, the best way to stay clear of this law, and other legal liabilities, is to always disclose your status and/or practice safer sex.
A Comparatively Lenient Law
While California's willful exposure law may seem like just another way to make scapegoats out of people living with HIV, it is extremely lenient in the context of similar legislation that has been passed in other states.
The AIDS Policy Center in Washington, D.C., reports that 27 other states have established criminal penalties for knowingly transmitting or exposing another person to HIV. Most of these statutes have been passed as the result of political grandstanding by social conservatives and the religious right.
Unlike the California statute, under most of these state statutes individuals can be prosecuted if they know they are infected and engage in sexual intercourse without disclosure. Some of the laws are even more broad and vague. In Alabama, you can be prosecuted for "conducting oneself in a manner likely to transmit the disease," and in South Carolina, for "exposing another person to HIV without first informing."
Other Legal Liabilities
How the law will impact prosecutions under California's general criminal laws, such as attempted murder, is not clear. It is likely that prosecutors will move toward restricting suits unless the elements of the willful exposure statute can be met. Prosecutions under the general law have been rare in California, and have usually accompanied charges of violent sex crimes. However, some of these general criminal laws do not require specific intent. For these crimes, a conviction can rest on proving recklessness or criminal negligence. Because the potential still remains for prosecution under these general criminal laws, you should not risk relying on the specific intent requirement of the willful exposure statute to avoid liability. The best policy to protect yourself from any criminal liability is to disclose to your sexual partners and to use a condom.
Civil Cases Brought to Trial
Following these precautions will also protect you from civil liability. In addition to criminal prosecutions, a number of civil cases have been brought in which individuals sue sexual partners with HIV disease for monetary damages. These cases proceed under the tort theories of negligence, battery, fraud and intentional infliction of emotional distress.
The most famous of these cases occurred in California. Mark Christian, the sexual partner of Rock Hudson, sued Hudson's estate and received a jury award of $5.5 million. Christian claimed that, despite his repeated inquiries, Hudson and his private secretary denied that Hudson had HIV. Christian won this award even though he did not become infected. Like most civil cases, he claimed as damages the emotional stress caused by being exposed to the virus, not actual infection.
Other civil cases have not faired as well. These cases are frequently dismissed because the plaintiff cannot allege the necessary facts. Criminal statutes are often used by civil courts to set the standard for what type of conduct is considered negligent. California civil courts may dismiss negligence claims unless the infected person's conduct meets the requirements of the new willful exposure statue.
To sum up, if you have safer sex and disclose your status to your sexual partners, you will not violate California's willful exposure law, and will protect yourself from any form of criminal or civil liability.
Brad Sears is the Legal Check-Up attorney in the HIV/AIDS Legal Services Alliance.
He fucks me without condom! Dec 6, 2005
Hi - i am a 38 years old gay guy, been hiv positive for 2 1/2 years. 9 months ago i started an (on and off) "relationship" (read fuck-buddy) w a guy who later tested negative. He always tops me (had sex about 10 times in 9 months) and never wants to use condom. I am afraid to tell him my hiv status, afraid this incredible sex stops. Also i've been telling him again and again we MUST use condoms, he answers yes, but always wants without. And, yes, i am not able to stop the sex when we are at it.
How do i get out of this mess? Now i have been avoiding him for 2 months, because just not seeing him helps me keep away sexually. That leaves me w a rotten sex-life (sorry, but this guy totally outperforms any one else i have had sex with, the passion is also incredible...).
I am sure we will end up in bed again and i am going through in my mind everything of how to make sure the condom is on, how i will myself put the condom on him. Even though i know the probability is huge that he will take it off and just fuck me. And not 10 crazy horses are able to separate us than.
I also look at questions about chances of hiv-transmission (6,5 in 10.000) from bottom to top, but it really doesn't bring me any comfort. He could still get it (although i probably, according to my doctor, am going to start medicines within some months, and hopefully get the virus level down from todays 20.000 to undetectable, under 50).
Whish i never met this guy. Help, please!
Response from Dr. Frascino
You are not alone in your quandary of how and when to disclose your positive HIV status. I've addressed this point multiple times in the past and you can review those comments by checking the archives. (I'll repost one question and answer below.) It's important to point out it takes two to do the Mattress Mambo and the ultimate responsibility of maintaining one's health (avoiding infection, reinfection, STDs, etc.) is up to each and every one of us. In other words, you are not solely responsible for this situation. That said, obviously all of us that are "virally enhanced" want to prevent further spread of this dreaded scourge whether it be to a "buddy", lover, spouse, pizza delivery guy, pool boy, hot bi-curious but clueless Mormon missionary boy wearing Jesus jammies or whomever! Consequently I agree you should disclose and the sooner the better. And certainly before those "10 crazy horses" show up trying to pry you two rooting wombats apart. I'd suggest you plan a meeting somewhere where it's highly unlikely you'll have nookie a meeting of the Young Republicans, a lesbian teahouse, almost anywhere in the State of Texas you know, somewhere like that. Then tell your stud-muffin sex machine what he needs to know. If he says it doesn't matter, that he's a top gun and enjoys going commando on your butt and that he is willing to take the risk, advise him you are not. It's important for you to realize he's not the only one at risk here. If he barebacks you, he most likely barebacks others. That means he's placing you at risk for STDs or even HIV reinfection if he contracts another strain of the virus elsewhere. Are you willing to take that risk? I certainly would strongly advise against it. You know what is right and you know what you have to do. I'm quite confident you'll do the right thing for both you and your cocky buddy
What a way to disclose. Oct 24, 2005
I have known of my HIV status for about four years now, however I sometime have this issue of disclosing to my patners at the right time. Sometimes I feel I disclose to early and sometime I feel I disclose too late. On October17, 2005 my current boyfriend and I had intercours and the condom broke. As he got up he annouced the news of " the condom broke" and he thought nothing of it. I immediately felt scared to the point that I cried. I notice on the bed sheets there were blood ( just slight but it was blood). I went to work and thought about what should I do. I made a few calls and before you know it we were on our way to the ER for PEP perscription. On the way there I had to disclose to him that he has been exposed to the virus and we are on our way for you some help. My question is, what is his chances of contracting the disease and how can I keep this man in my life, I love him so much and I don't want to lose him. Oh we have been together for about a month in a half now.
Response from Dr. Frascino
When to disclose is a question many of us wrestle with on a continual basis. I'll repost below some responses from the archives that address this topic.
Regarding your questions of the risk of acquiring HIV from the broken-condom experience, you did not mention if your partner was insertive (top) or receptive (bottom). So I'll give you the estimated risk statistics for both. The estimated per-episode risk for acquisition of HIV from unprotected (including broken condom) insertive anal intercourse is 6.5 per 10,000 exposures to an infected source. This estimated risk increases to 50 per 10,000 exposures for receptive unprotected anal sex with a positive partner. These risks would decrease if PEP is taken. How can you keep this man in your life? Communication is key. Why not show him this post? Your concern and compassion for him are clearly evident in your comments.
I wish you both good luck.
Feel Really Bad Jul 12, 2005
I am an HIV poz male of five years, I try to make sure I have safe sex for the most part. I placed an ad, where it asks you if you are neg or poz, or you do not have to answer, I choose not to answer, and instead have that conversation with a person when sex is a possibility. However, I met this guy, we had dinner and a few glasses of wine, and I spent the night, however during the night he started to have aggressive sex with me that lead to unprotected sex, this is someone I do not know his status. I am a wreck, he stated he had diarrhea for a few days, and a pain in is throat, I was tested two weeks ago, have not had sex with one else, and don't have any std's... I know I have to bring this subject to the table, please help me out..
Response from Dr. Frascino
The subject of when and how to disclose your HIV status is not an easy topic to address, as there is no easy (or correct) answer for everyone's unique situations. Jim, I think you already know what needs to be done, and I would add the sooner the better. I'll post several of my responses from the archives that address the disclosure issue.
When to dislcose Mar 28, 2004
Hi Dr. Bob,
Thanks for your helpful insight for us pozitoids. I have been positive for a little over a year now. I have only dated one guy since and he was also positive. That lasted for about six months as I was not ready emotionally to be involved with someone so soon after my diagnosis. Well here it is a year later and I have met a great guy. We met at a club a few weeks ago. We have not had sex yet. We have however kissed passionately on several occaisions. I am going to be spending the weekend with him next week and it will definitely be time to perform. We have not even broached the subject yet of HIV. I am very interested in this guy and am wondering when I should tell him. I know it will be before we get in the sack. But I am wondering if it would be best at dinner, after dinner...This is the first time I have had to disclose to a guy since my diagnosis, not knowing what his status his, his feelings about HIV etc. (I met the guy I dated immediately after my diagnosis through a positive group). So I am totally new with this disclosure thing. Any insight you could give me about what to say and when to say it would be greatly appreciated. Your experiences as a fellow positoid are refreshing and greatly reasurring.
Response from Dr. Frascino
I recently posed the "when do you tell a potential bed partner you're positive" question to a group of pozitoids. The answers ranged from "pre-smooching" to "pre-heavy petting" to "before the money shot" to "afterward" to "I usually don't even tell 'em my name!" so, you can see, there really was no consensus here whatsoever! As for my personal opinion, I addressed this topic recently in another question, so I'll just re-copy that post and hope it helps your decision process.
help,i feel like a deadly weapon Posted: Mar 18, 2004 Dear sir, several times i foloowed your forums and answers you have given to many other people here. I'm really in crazy mood and i beg you tell me something about the follow situation.I'm very sad because after 1year and a half of non sex (i've been teste poz 1 1/2 year ago) i have found a guy that a really like. I had sex with him and, protected anal sex, but we have kissed (we liked very much to kiss each other) but i was streesed about the risk. Secondly,i let him make me oral sex for 1,2 min. What is worse is that we like each other very much and i think we've just falling in love (i didn't disclosed my status). I have such bad feelings and i'm scared for him. What are the risks for him to become +? i know, there are different opinions but could the kiss be such a risky way and is it so risky that i let him 2 min to provide oral sex, i didn't come into his mouse ( i interupted him because i was scared for him) . Sorry for the language. i'm from an eastern country and i cannot find here too many advices. As you can imagine i care so much about him that i'd rather be dead than to hear that he become infected. Please, i would be grateful if you could find 1 minute to answer me. Kindly yours,
First off I must remind you and our readers that questions like these should be posted to the Safe Sex/HIV prevention Forum, not the Fatigue and Anemia Forum. I'll post this reply in both forums, but folks if you've asked a question here not related to Fatigue and Anemia, I'd strongly suggest you re-post to the correct forum to increase your chances of a reply. Thanks! OK, now back to your question. I'm glad you didn't "come into his mouse" as many mice aren't very happy about getting their tonsils spunked. Sorry I don't mean to make light of your situation. I'll be serious now. To disclose or not to disclose, and exactly when to do so are very difficult questions for us HIV pozitoids. Some folks live by the "don't ask, don't tell" rule, but always play safe. Unfortunately what one person considers "safe," someone else might consider too risky. Some folks prefer the "do ask, do tell" philosophy. Sure, this may result in getting dumped before you get humped, but wouldn't you rather know sooner rather than later that this guy is never going to be your Mr. Right? I know you are from an eastern country, but I thought I would mention that here in the US, 24 states have passed HIV-specific laws regarding disclosure. Merely exposing someone to HIV you don't have to have actually transmitted the virus can land you in jail! So in these states, as long as you know you're HIV-positive, you can be arrested just for having sex and not disclosing. These laws, as you can imagine, are extremely difficult to enforce. OK, regarding the risk of HIV transmission in your particular situation, kissing is not considered a significant risk. Oral sex carries an extremely low risk. Alex, at this point, I would strongly suggest you be honest with your new boyfriend. Waiting longer is not going to make things any less awkward. His response may surprise you, and could range from a caring heart-to-heart discussion to a cranial meltdown and wall-punching. Hopefully, he won't say either "See ya later" or "What's HIV?" also, it's probably worth noting that at this point, you don't know your boyfriend's HIV status either. It's possible he too may be positive. At any rate, if the relationship does end because he can't accept your positive status, please realize the guy is rejecting the virus, not you!
How and when to tell a boyfriend im hiv+ Jan 20, 2005 I have just found out i am hiv+. I am already informing past and present sex partners of this so they can be make sure they are alright. One of these guys I believe could be "the one" ive been looking for. How do I tell someone of my status and how do I deal with being rejected solely on me being hiv+?
Response from Dr. Frascino
Sorry to hear about your recent positive diagnosis. There are no easy answers as far as exactly when and how to disclose your HIV status to your sex partners and to "the one." There are various strategies to consider, some of which I've discussed in the archives. The one strategy that I certainly don't recommend is waiting months and months to break the news. I don't believe good relationships withstand such secrecy. Consequently, I'd advise disclosing all to your honey now. If his/her status is different from yours, there are a variety of common immediate reactions that might ensue, including:
1. a caring heart-to-heart with lots of hugging and perhaps a few tears
2. "What's HIV?" (most likely if you are dating a graduate of an abstinence only sex education program)
3. a cranial meltdown and wall-punching
4. silent shock and awe
5. "See ya later." (most likely if you are dating one of those compassionate conservative Republicans)
Let's hope it's #1, but even if it's #5, just remember they are rejecting the virus, not you! Perhaps some advice form Buddha is in order (and isn't it always?): Asked how he braved his critics' insults and anger, Buddha replied, "If someone offers you a gift and you decline it, to whom does the gift belong?" I'm a bit less contemplative. If someone blows a load of rejection your way because of your HIV status, I say, "Spit, don't swallow." I wonder if I can put all that on a fortune cookie fortune?!?
Good luck! I'm here if you need me.
Im recently diagnosed HIV . . .May 21, 2004
I was recently diagnosed as HIV +. Im 99% sure from whom I got it from and this person new their status and did not bother to disclose that information to me but after I told them I just found out Im HIV positive. They admitted they knew prior to having unprotected sex with me and failed to tell me. Ive questioned my local authority and I was advised that if I press charges it will be for assault and they will arrest him. But I have to prove he is HIV + and he knew about it prior to him havig sex wih me if I plan to make a case for felony attempted murder. How do I do that? I want to make him pay. But how do I prove he knew about his status? I have not proof about his admission. My life is ruined and I take a large part of the blame but I dont think I should be the only one to pay for this demise. What to do from here.
Response from Dr. Frascino
Although there is no doubt that the person who knowingly placed you at risk for acquiring HIV is indeed a scumbag, I agree with your statement, "I take a large part of the blame!!!" Blaming others for our own lapses in judgment is not helpful. One in every 250 Americans is HIV positive; however, only one in 500 knows it! Consequently, whether your scumbag knew or not, the primary responsibility for your staying safe and protecting your health is really yours and yours alone. We must all assume our sexual partners could be HIV positive, and take the appropriate precautions. Even if a partner slapped a lie detector on his Mr. Happy and claimed to be negative, I wouldn't believe him.
When and how to disclose one's status has always been a challenging issue. Now that you are positive, have you decided whether, when, and how to disclose your status to the dreamboat hottie you have lined up for next Saturday night? Will you bring up the subject over dinner with some Beyoncé in the background? Maybe over a light lunch? Some guys insist on telling pre-smooching (before even saliva gets exchanged) while other guys don't even tell tricks their name, let alone their status.
If you play safe, do you even need to tell? Well, legally that depends on where you live. Twenty-four states have passed HIV-specific laws regarding disclosure. The threshold for prosecution in these states is exposing someone else to HIV. You don't have to transmit the virus to land in jail. In these states, as long as you know you have HIV, you can be arrested for having sex and not disclosing, whether you intended to infect someone or not! I believe these laws are misguided. Prosecuting these cases is of course very difficult, and these laws, although on the books, for the most part are not enforced. Here in California, the law has a "specific intent" clause.
So, your final question is "What to do from here?" My advice would be to stop focusing on "him" and refocus on you. HIV is now your reality and your problem. Blaming others and making someone "pay" will not help you cope with your new reality. The scumbag has to live with the reality that he may have been responsible for passing HIV on to someone else. It's a painful realization, and one which, most likely, will cause him considerable guilt and angst. Hopefully, it will also make him reconsider his actions and change his behavior in the future. You need to consult a competent and compassionate HIV specialist. A period of adjustment as you learn to cope with your new reality as an HIV-positive person is to be expected. Hopefully, you will soon realize your life is not "ruined." It's merely changed. I've been positive since January 1991. HIV has not "ruined" my life. It has redirected it, refocused it, and in some indirect ways, improved it. It has afforded me a new appreciation for my existence, however long it lasts.
Write back anytime. We are all in this together, and together we'll see it through, OK?
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