disclose is the law (DISCLOSURE, DISCLOSURE LAWS)
Apr 20, 2008
hi, i agree with the other poster we all should disclose to someone you are going to have relations with, i got tagged by a guy who i repeatedly ask about testing and his response was he had been tested several times and was negative this was a lie i am trying to have him prosecuted but knowing the law they protect the criminal first and just dont care about some people i have always been a good person i was married for 15 years and then i met this horrible person im tired of people defending these people to make them feel good wrong is wrong
Response from Dr. Frascino
We are all in agreement that we should all disclose our HIV status before having sex and yes there are disclosure laws in some locations (see below). However, I do not believe you can blame other people for your own personal decisions to place yourself at risk for STDs, including HIV. Unsafe sex takes two willing participants. Yes it's wrong to purposefully not disclose. It's equally wrong to willingly place yourself at risk for HIV and then blame someone else if you have an exposure. Personal responsibility is not limited only to those who are HIV infected! (See below.)
WAKE UP CALL ON DISCLOSURE Apr 19, 2008
This is more of a statement than a question. I have been a fan of Dr. Bobs for several years now here on The Body, and thought I had learned alot about how to do my best to protect myself from HIV and other STD's. As a BI male, (I Know the lowly BI male) I knew my risk was greater than heterosexual males. I have always done my best to be safe. But recently I was exposed to HIV due to a condom break with a couple who after the fact (after asking 3 times in fact)disclosed that they were HIV poz. Consequently, theres a pretty good chance I'm poz as well now. I have always been in agrement with DR. Bob that one should not rely on disclosure and must assume all partners are poz, as many are and dont even know. But there alot, or at least a significant amount, of gay and bi men out there (as well as str8 Id guess) who choose to lie to thier partners about thier status. The couple I was with told me they were both neg when asked and I still insisted on a condom. They complied, but when one of them topped me they had stretched the conndom for some reason and broke it at the base of his penis, exposing me to precum. When I noticed the condom after sex it was broke and he said it broke only when he was taking it off. I know Dr. Bob says condom failures are usually obvious, but the key word here is usually, and do you want to stake your life on it? I only found out these individuals were poz a week later, far to late for PEP, from someone else and finally they admitted it. In fact one of them had AIDS-not just HIV_and consequently a high viral load. While I take rsponsibility for having sex and knowing that condoms do fail occasionally, it is a moral obligation to inform a partener of any risk they maybe taking knowing that condoms do fail or are intentionally broke. In other words condoms are not 100% effective for reasons other than physical failure. People can and do lie about thier status. Had I known the individuals were poz, I would not have even risked a condom failure with them. Disclosure is a important peice of information people need to have to set thier safety and risk levels. I must vehemently object to any notion that non-disclosure is a trivial matter. It is a matter of life and death. I have heard of this happening to other guys and it seems to be becoming more frequent in the gay/bi community to lie or intentionally break condoms. The bottom line is beware that use of a condom is not a 100% reliable saftey measure-only no sex at all is- esp if guys are going to break condoms on purpose knowing they are poz. And for all you poz guys thinking using a condom is a substitute for disclosure, your wrong. Your partner deserves to know if the condom fails they will definitely be at a serious risk, and let them decide if they will take that risk. You shouldnt decide it for them. Needless to say Im very angry, sad, and scared. This exposure/transmission was preventable with a little thought for ethics. Here I sit 2 weeks later with ARS symptoms, fatigue, headache, runny nose,myalgia ect from a totally selfish act on the part of two people who apparently could care less about the life and health of anyone but themselves. Beware, they are not unique. Becasue I am Bi I have always been cognizant of the risk I put women at by my risky MSM behavior, and never sleep with women unless Ive been tested and am sure Im not in a window period. Even when I do I always have been safe for thier benefit as well as mine. I have lived my life in fear of a disease that I have finally caught. I asked one young gay guy once why he and others barebacked knowing the risks. He told me-"we are all going to get it anyway, may as well get it over with." Consequently many of them have little regard for those of us who do not share that attitude. Looking back on it it seems he may have been right. If you play long enough, a condom will break or someone will break one for you. Sad but true. So Dr. Bob, while I respect your obvious intelligence and expert advice, I think you error in defending non disclosure. I dont think its enough to say that its "better " to disclose before. I think it morally and ethically mandatory. A persons right to privacy does not outweigh the value of a human life. I have oft heard you say that Knowledge is power. Each person should have power over there own risk levels and to not disclose effectively retains that power for the one person, placing the other at risk. If one knows, one should disclose PRIOR to having sex, condom or not. Oral, anal or vaginal. Its just the right thing to do. Becasue one man didnt disclose for fear of losing a round of sex, a son will be without a father, and another life will be snuffed out by this disease. I am devestated, and have yet to come to terms as to how i will tell family and friends, and my child. I am full of hate for this man for taking away my opportunity to decide for myself what risk I am willing to take. Id like to end by saying that I have enjoyed your insights, humor and witty writing style. I wish you the best of luck.
Response from Dr. Frascino
I'm puzzled why you think I defend non-disclosure. If you reread my comments, hopefully you'll realize that is not the case. I strongly encourage disclosure. However, as you recently found out, that doesn't always happen. Plus, it is estimated that at least 25% of the over-1,000,000 HIV-positive Americans have absolutely no idea they are infected. Consequently the critical point I try to make is that you cannot rely on disclosure. Each of us must take responsibility for our actions and take all the necessary precautions to protect ourselves and our partners.
I'm curious why you think the guys who topped you intentionally broke the condom. How do you know they "stretched the condom for some reason"??? If you saw someone improperly using a condom, you should have done something about it right then, not place blame after the fact.
You are correct: Condoms are not 100% reliable in the heat of passion, primarily because they are not used properly. However, when used properly, they very seldom fail. I also tend to doubt your comments about HIV-positive guys breaking condoms on purpose. That indeed would be morally reprehensible.
I should also point out some of your other assumptions are not accurate:
1. ". . . exposing me to precum . . . there's a pretty good chance I'm poz as well now." Actually, no, the odds remain very much in your favor that you did not contract HIV from this unfortunate encounter. Remember, not every exposure leads to viral transmission. In fact the vast majority do not.
2. "In fact one of them had AIDS not just HIV and consequently a high viral load." No, having AIDS doesn't mean you automatically have a high viral load. In fact many "just HIV" folks have much higher plasma viral loads than AIDS patients who often have their viral loads suppressed to undetectable levels with antiretroviral therapy.
3. "Because one man didn't disclose for fear of losing a round of sex, a son will be without a father, and another life will be snuffed out by this disease." I think you're being a bit overdramatic here. You are the one who chose to have sex with these guys and by your own statement you said you agreed with my premise that we "must assume all our partners are poz." So if you assumed they were poz, what difference does it make? You still chose to proceed with your roll in the hay.
I'm not defending non-disclosure; I'm merely pointing out you have no reason to blame others for personal decisions and choices.
No doubt you are indeed "very angry, sad, and scared." You also need to be realistic. Chances are your degree of panic is heightened by the fact your potential exposure occurred while you were being topped by a guy. "Disclosing" this fact may be as uncomfortable for you as disclosing a medical diagnosis. Disclosure is not an easy issue Scott, no matter how much you feel it's an obligation. For instance, I note you are already flummoxed by trying to "come to terms as to how (you) will tell family and friends, and (your) child." I fully realize these are two very different types of disclosure, but I merely wanted to point out it's not so cut-and-dried when you are the person having to do the disclosing!
Scott, my advice is that you get some psychological/psychiatric counseling. You need to begin to deal with some issues, including sexual orientation, guilt, irrational fears, anger, etc. You also need to stop blaming others and man-up to your own behavior and risks. I'm not saying you did anything wrong and yes, the other guys should have disclosed; however, you took the risk (remember, you "assumed they were poz") and subsequently you have to accept the consequences of your actions.
There is an excellent chance you have not contracted HIV from this episode. However, obviously, you need an HIV test at three months and, if negative, a confirmatory test at six months. Whatever the result, I believe you would benefit from counseling.
How infectuous am I? Should I tell? (DISCLOSURE, DISCLOSURE LAWS) May 2, 2007
Dear Dr. Bob,
I am a women and found out I am HIV positive some 10 months ago. I'm happy and healthy, and open about my status to my friends, family, and colleagues.
I'm not on medication, but my viral load has remained undetectable at all tests, and I'm hoping I'm an elite controller. I don't have or want a partner at the moment, but do have casual sex with men. Up to now, I have always informed the men of my HIV status before we had sex, and although few men refused to have sex because of it, I've noticed that many freaked out afterwards, because they simply do not know how exactly they can get infected. I always make sure the men use condoms when having penetrative sex, and feel that the risk of me infecting someone is virtually non-existant. Therefore I'm now considering not informing men about my HIV status, unless I think it may become more regular, or unless something goes wrong with the condom. Please tell me that I'm not being naive: 1. With oral sex (blowjobs) from women to men, the risk is non-existant, because it's only my saliva that comes into contact with the penis. If that was infectuous, so would be kissing. Unless maybe there are wounds or sores both in my mouth, and on the guys' penis, but the we can refrain from oral sex. 2. With cunnilingus the risk is non-existant as well, unless maybe also there are sores and open wounds in my vagina, which I have never had 3. With penetrative sex, the risk of me infecting someone is non-existant when condoms are properly used and no "condom accidents" happen 4. So the only risk of me infecting someone with HIV is when a condom breaks, or is lost inside of me, right? And even then, the chance that I will infect a guy in such a case is very very low (1 in 10'000?), because my viral load is undetectable, I'm healthy and I have no other STDs (although herpes was found in my blood, I never experienced an outbreak)
Please tell me whether I'm being realistic here, and can therefore consider not telling men about my status when I intend to have a one-night-stand with them. I would really not want to have it on my conscience to infect someone with HIV, especially so when I haven't told them about my status.
Thanks a million for helping me out here..
Response from Dr. Frascino
Disclosure is always a sensitive and challenging issue for us "virally enhanced" folks. Rather than deciding not to disclose, perhaps you should take this opportunity to educate these sorry sods! I should also point out there are now legal ramifications of not disclosing your HIV status in some locations. (See below.)
It's shocking to realize that folks still freak out post-sex because "they simply do not know how exactly they can get infected!!!" Abstinence-only sex education policy, strikes again!!! Is it 2008 yet?
I hope you post this one to the ones that ask about disclosure (DISCLOSURE, DISCLOSURE LAWS) Feb 13, 2007
I am surprised to hear of people asking Is it right or necessary to disclose my HIV status? Well let me say this it is not that you should but that you MUST disclose. I know of a man that went ahead and started a relationship with a mother of 3 children and did not disclose his status. In fact he lied saying he was a blood donor. This lady has a RIGHT to decide if she wishes to have a sexual relationship or not as well as living disease free and spend her life to raise her children. So this As....le decides to shorten her life span affecting her family as well. I think he needs to be hanged.For people that again question if to disclose, remember that some states can imprison HIV positive that knowing their status are spreading the disease. Some states have full disclosure on names of HIV poz people required by law. Some will argue, well this lady should use condoms, but a steady, trustworthy relationship where one side claims clean bill of health dependant upon current blood donor status was totally misleading. So for those again that ask SHOULD I DISCLOSE? my answer is ABSOLUTELY YES UNLESS you want to spend your days in prison and remorse!!!! of the evil you have caused. Its amazing how lust or evil or both are rampant in society. Thanks for the opportunity to send these remarks. Anon
Response from Dr. Frascino
Sure I'll post your comments although I must admit I find it interesting that you wish to remain "anon" even for posting your remarks, but have no difficulty lambasting an HIVer for not disclosing his status.
If you've read my comments on this forum (see sample below), you will realize I strongly urge HIVers to disclose their status; however, the burden of your remaining HIV negative should not rest solely on the backs of poz individuals! It really is your responsibility and your decision whether or not to protect yourself.
It's important to note that 25% of the 1,000,000 HIV-positive Americans have absolutely no idea they are HIV positive. Consequently, a large portion of the new HIV infections are occurring not out of malice, but out of ignorance and as a result of people taking unnecessary risks. Yes, some states have laws against not disclosing; however, these cases rarely get prosecuted. It's one person's word against another's what was or wasn't whispered in the heat of passion. "Anon," it's time for you to stop blaming others and start taking personal responsibility for your health or lack thereof.
So is this an extenuating circumstance? (DISCLOSURE) Feb 13, 2007
First of all I would like to send out my condolescences to you for your recent loss. I know that you know he (your brother) is in a better place now, so I am sure that gives you some comfort.
So now here is the question..more like a story. I am 25 year old who was diagnosed pos last year, and placed immediately on sutiva and truvada and then on atripla. When I found out, I thought I could never ever be with someone, no matter what.....I did not want to do (pass the virus) what someone did to me. Anyway, I met a boy last week and we hit it off great. However, I knew that sex was not going to be an issue because I do not think I am ready for it. However, I didnt think that I could be so mentally drained by spending time with him and considering a relationship. Since I havent had any sex with him or plan on in the near future, I havent disclosed because I want to be sure that we can really be something, and not just a fling. Anyway for the past week we have been spending alot of time french kissing, and I mean alot. Yesterday, he told me he had a sore throat and was coming down with a cold. My world immediately tunred into a nitemare again. I started to think that he was starting to seroconvert. Now I do not know what to do. How proable is is that I now killed him? He is young, 21 and I probably couldnt live with myself if I knew that I gave him the virus. So why am I thinking that I could have infected him? Well we have played tonsil hockey for the last week, and some of it was rough. Here is where it gets graphic, He likes sucking on my tongue and he also likes to bite my lips. I of course being a francophile like yourself, returned the favors. Furthermore, I recently realized in the morning when I brushed that when I brushed my tongue I had like two spots that were bleeding litely after I brushed my tongue? Could I have transmitted the virus to him that way? What about after we had dinner two nites ago and I had coffee, what if I burned my tongue and didnt realzie it? what if he kissed me then? What if he has an acute case of gingivitis? Is my mind playing tricks on me or is something more warranted. Doctor, I am so scared because this is all new to me, and I guess you are going to reprimand me for not disclosing, but I didnt feel that I needed to because we havent had sex yet. I feel again liek I felt when I was diagnosed. I do not know what to do. I have looked through the forums for similar responses but they all seem to point that kissing is safe. I do not know what to do...I am even considering breaking off the relationship just to make thinsg easier. Its just so hard when you feel broken all the time, and you think that you are going to kill everything you come in contact with. I remember when I was diagnosed and how hurt my family was by it, and I would hate myself even more if I founf out that I caused that pain to someone else. Please doctor, just tell me eveything is going to be ok....I am so scared.
I hope you can answer me, please be compassionate and let me know what you think.
Response from Dr. Frascino
I'm not going to reprimand you for not disclosing, but I will say that decision is the root of all your current problems! From reading the forum, you probably realize I strongly encourage HIVers to disclose their status and the sooner the better. That's to avoid situations exactly like the one in which you now find yourself! Also, I feel it's the right thing to do. Also, waiting to disclose doesn't make it any easier. In fact, in many ways, it makes it much harder. (See posts from the archives below.)
Your current worries are unwarranted. I do not believe you "killed" your boyfriend, despite your tonsil hockey, tongue sucking and lip biting! (By the way, what does being a Francophile have to do with that? Count Dracula was from Transylvania, not Paris, wasn't he?)
As for your "what ifs," you are being unreasonable. Do you really think you could burn your tongue on hot coffee (OUCHAMAGOUCHA) and not realize it???? No way. No how! If you don't believe me go ahead and give it a try. But don't say I didn't warn you. (Boys and girls reading this forum, I strongly advise that you do not try this at home!!!)
Next, you're "considering breaking off the relationship just to make things easier????" Make things easier for whom? And how would this make anything easier? Bad idea, Bonzo!
Your real problem is clearly stated in your post: "It's just so hard when you feel broken all the time, and you think that you are going to kill everything you come in contact with." Those feelings are perhaps even more toxic than your HIV! You need help accepting your new reality as a "virally enhanced" individual. Counseling may help you confront and cope with your new reality.
Regarding your new tongue-sucking Mr. Right, it's time you leveled with him. It's not only the best way to confront your irrational fears and guilt over this issue; it's also the right thing to do. If he and/or you are worried about your actions to date, he can get a single HIV rapid test at the three-month mark to put those fears permanently to rest. You and your boy-toy should also read the archives of this forum pertaining to magnetic couples. They contain loads of information that should help your relationship. By the way, did you ever consider the possibility that your studly Dudley may also be HIV positive? Perhaps he too was reluctant to disclose, because he wanted to be sure you were more than a fling!
recent photo? (DISCLOSURE, DISCLOSURE LAWS) Jan 20, 2007
is that picture of you a recent photo?
Cuz it doesnt look like you have had any fat loss in the facial area. Has this just not been a problem for you or have you surgery to fix it.
Do you think its ok to have sex with people if you are HIV positive and not tell them you are HIV positive but be really careful to use protection and make sure its totally safe?
Response from Dr. Frascino
The photo is reasonably recent. And yes, I have had problems with facial lipoatrophy following years of D4T therapy. I've had Sculptra (New Fill) injections to correct the problem. You can learn more about my experience by accessing the pod cast interview I gave for The Body's "Lipoatrophy Resource Center," last year. It can be accessed on The Body's homepage under the "Quick Links" heading.
I think you should always use protection and be totally safe. I also strongly recommend disclosing your status. Not doing so is actually illegal in some states.
Telling your partner (DISCLOSURE, DISCLOSURE LAWS) Nov 24, 2006
I have seen HIV+ people getting sentenced to life imprison for not telling their partners before having unprotected sex and infecting them with HIV.
Now, my question is this, If I decide to have sex with condom without telling my partner about my status, can I still go to prison?
If I decide to have oral sex with my partner(Eating her vagina and have her suck my penis with/without ejaculation) and without revealing my status, does that constitute to a breach of privacy? Can I still go to Jail?
If these answers are yes, then what do you recommend I should do concidering that she will run away if i tell her that I am Hiv+ and I need sex.
I have convinced her about not having kids and choosing adoption but that is not enough. Your help will be appreciated.
Response from Dr. Frascino
You raise multiple questions that have somewhat complex answers. Consequently, I'll repost several questions from the archives that address your various concerns.
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?
Bob I thin k you are wrong on this one... (DISCLOSURE) Feb 7, 2007
Your social and professional circle no doubt afford you many luxuries. But for many of us out there is it not the face and ignorance is a fact. Quickly stated, there is nothing ambiguous about HIV, but disease progression can be. I was diagnosed when my son was 9 months old. when do you think he had the right to know?
I am sorry but I find you responses to be smug and disrespectful to the many people who live their lives in an environment fueled by ignorance and fear.
I most cases, it takes many people acting in concert to bridge the gaps between ignorance and acceptance.
Response from Dr. Frascino
You may find my responses to be smug and disrespectful; however, that was certainly not my intention.
I believe your son should be told as much as he is able to understand and as soon as he is able to understand it. The "environment of ignorance and fear" is fueled by those whose actions perpetuate that environment! Social and professional circles, whatever they may be, do not make HIV disclosure any easier. Of that I am certain.
It may take many people acting in concert to ultimately bridge all the gaps between ignorance and acceptance; however, if no one is willing to come forward because of fear, how will we ever be able to work in concert? Please note my HIV/AIDS benefit concerts that have now raised well over a million dollars for crucial HIV/AIDS-related services worldwide are called "A Concerted Effort." I would welcome you to help bridge the gap as soon as possible. As the old African proverb states, "The best time to plant a tree is 20 years ago. The next best time is now." Had we been more open and less fearful 20 years ago, I believe there would be less HIV-related stigma, fear and ignorance today. Think about it.
(I'll repost the question you are referring to below for our readers.)
You cant be cavalier... "Homophobic single father" Jan 28, 2007
Your comments to the single dad with HIV and a teenage son maybe a bit too reflective of the insulated circles where you travel. I too have a teenage son and have been insistent about diclosing my status in the right situation with the right level of support and counseling. However, after 2 years of a nasty divorce fight my ex decided SHE would tell our son "the dirty little secret!" She did it crying in bed one night... really doing a head job on the kid. Moreover the status of my HIV has been made in to the 2000 pound guerilla that the court system continues to evade. Secrets are one thing and disclosure is another. No child needs to comfront the ambiguities of HIV until there is a need to know. I suggest you advise this mother to encourage her son to talk to someone who has gone through this before you encourage a family meeting with the adults.
The one thing I have learned in dealing with HIV for 15 years is that timing is everything.
Response from Dr. Frascino
Sorry, but I have to disagree. And your personal story only lends further evidence to my argument. If you had disclosed your status earlier, there wouldn't have been a "dirty little secret," a "head job on the kid" or a "2000 pound guerilla in the courtroom!!!" There are no "ambiguities of HIV." You either have it or you don't! That you chose not to disclose while waiting for the "right situation with the right level of support and counseling" has complicated your life and your relationship with your teenage son. The real problem was not whether or not your son could handle the information; it was your delay in disclosing the truth.
I stand by my recommendation and will reprint it below.
Homophobic single father Jan 17, 2007
My 35 year old son is a single father with sole custody of his teenage son. 2 years ago after being hosp. for PCP he learned he was pos for HIV and had to move back home with his son from an urban area to our small rural town. His employer went bankrupt and he lost his health insurance. He planned to make no disclosure but his doctor's office inadvertently told me, his mom, of his HIV status during a phone call soliciting payment of their bill. He has told no one for 2 years, including his son; sends me to the pharmacy to get his HIV meds because he's afraid he'll be recognized and word will leak back to his son; is about out of money to self-pay for meds; has no local doctor and isn't getting scheduled blood tests and doctor visits; won't go to the excellent AIDS clinic we have in our town because someone will recognize him and "word will get out" that he's poz or his son will be negatively affected by it; the stress in our home is becoming unbearable because there is a huge elephant in the room we can't talk about. I respect his desire to keep his health condition confidential; however, he really needs medical and emotional counseling because this is too great a burden to carry all by himself, especially since he's homophobic. Dr. Bob, I've been reading your column for my emotional salvation and has helped by making me realize there's as much mental fatigue to this illness as there is physical. I don't want my grandson to hate me someday for knowing and not telling him but I so respect my son's need for secrecy. I find myself adding to my son's anxiety without meaning to do so by nit-picking because I can't even see a counselor myself without disclosing what my son asked me to keep quiet and I think I'm unconsciously punishing him for being poz and that's flat-out ridiculous since I love him greatly. Dr. Bob, I love your outlook on life and AIDS and your saucy responses have gotten me through a few dark moments. Any helpful ideas on how I can decrease tension in our home and make things better for my son and his?
Response from Dr. Frascino
If you are a regular reader of the forum, you probably already know my views on honesty vs. secrecy. You can already see the consequences of your son's unwise decision to try to keep his AIDS diagnosis a secret. "He isn't getting scheduled blood tests and doctors' visits . . . . The stress in our home is becoming unbearable . . . ." Clearly this cannot go on indefinitely. Secrets (and/or lies) never do. You are not doing your son any favors by helping him keep his secret by picking up his meds at the pharmacy, etc. My advice is that it's time for some "tough love." Your son needs a reality check. Plan a very private family meeting (adults only). Advise your son you are very worried about his current predicament and the consequences his secrecy is having on his health and your entire family. Tell him directly you have respected his wishes up to now, but can no longer do so. You will not lie or cover up for him. You will not sneak around and get his medications to protect his secret. You will not shield your grandson from the truth. Be prepared for your son to have a "nuclear event" when you tell him all this, but no matter how angry he may get, don't get angry back at him. Tell him over and over again you love him and only want to do what's best for him, your grandson and your entire family. Offer to help tell your grandson the news about Dad's illness. Consider getting family counseling if your grandson has difficulty accepting the news. Encourage your son to get established with a local AIDS specialist and to reinstitute his regular visits and lab work. A benefits counselor might be helpful, if he's running out of funds for his medications. Offer to and, if possible, go with him to his doctor's appointments. There is no doubt your son could benefit from counseling. His secrecy about his AIDS diagnosis is worrisome. Counseling may also help him confront his homophobia issues, which may be linked to some of his HIV/AIDS psychopathology.
Chances are I'm not telling you anything you hadn't already thought of yourself. However, hopefully hearing it from me will help you act to save your son from further self destructive behavior.
AIDS stigma and fear can only be effectively confronted with rational thought, common sense and compassion.
Good luck to you, your son and your family.
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