October 18, 2011
On Oct. 7, a Minneapolis jury found an HIV-positive man guilty of first-degree assault for engaging in unprotected anal sex with an unnamed partner back in 2009. The kicker here is that the man being convicted, 30-year-old Daniel James Rick, did disclose his HIV status beforehand and the unnamed partner wanted to have unprotected sex anyway. When the partner later tested positive, he apparently decided that it was Rick's fault and that their act of consensual sex was assault.
The jury convicted Rick on a technicality in a 16-year-old Minnesota statute, 609.2241, which states that:
It is a crime ... for a person who knowingly harbors an infectious agent to transfer, if the crime involved:
(1) sexual penetration with another person without having first informed the other person that the person has a communicable disease;
(2) transfer of blood, sperm, organs, or tissue, except as deemed necessary for medical research or if disclosed on donor screening forms; or
(3) sharing of nonsterile syringes or needles for the purpose of injecting drugs.
They deemed him guilty of the second clause, which seems like it would apply to anybody who transmits any communicable disease -- which was legally defined as "a disease or condition that causes serious illness, serious disability or death" -- whether by accident or not, and regardless of disclosure and consent.
To be clear, Rick is not the picture of sexual function. He has been convicted of raping a 15-year-old boy and has three pending charges of attempted first-degree assault for having sex without disclosing his HIV status.
Still, the implications of this verdict are unsettling, distressing and enraging.
It's unsettling because there are 34 states where the transmission of HIV is considered either assault, assault with a deadly weapon or attempted murder. There is now precedent to convict anyone who is HIV-positive and transmits the disease to a consenting partner -- the entire positive community suddenly is now one condom break or bareback session away from being a criminal.
Sure, Rick is not the most stand-up guy, but this conviction only serves to stigmatize HIV more. No other disease is criminalized the way HIV is. What's more, stories like this do not encourage people to get tested -- quite the opposite, actually. What most people will see is that as long as they don't know their own status, they can't be found guilty of "knowingly" transferring HIV.
But as The Huffington Post article points out, there is some hope if we want to combat cases like this. On Sept. 23, Representative Barbara Lee (D-Calif.) introduced bill H.R. 3053, also known as the REPEAL (Repeal Existing Policies that Encourage and Allow Legal) HIV Discrimination Act, which calls for reform to existing HIV criminalization laws. Help get the bill passed by contacting your representatives and urging them to support it, or by emailing HIV Law and Policy, email@example.com, to endorse it.
Warren Tong is the research editor for TheBody.com and TheBodyPRO.com.
Follow Warren on Twitter: @WarrenAtTheBody.
Copyright © 2011 The HealthCentral Network, Inc. All rights reserved.