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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

Hello,

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.

Dr. Bob



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