Nushawn Williams is the young man who allegedly had unsafe sex with at least 48 women and girls in upstate New York after having tested positive for HIV and receiving post-test counseling. After Williams was arrested, most of the his identified partners were tested, and more than a dozen of them were found to be HIV-positive. Williams is currently awaiting trial on a variety of charges, including assault in the first degree and "reckless endangerment with depraved indifference to human life." If convicted, he could go to prison for fifteen years.
The resulting furor has led to the introduction in the New York State legislature of a grab bag of bills that would make knowingly transmitting HIV a crime -- bills that AIDS activists and civil libertarians argue are unnecessary, unjust, and, ultimately, counterproductive.
The leader of the pack, introduced by Assemblymember Steven Kaufman and Senator Serphin Maltese, creates the new offense of "aggravated reckless endangerment," a Class C felony punishable by up to fifteen years in prison. The Kaufman/Maltese bill would impose criminal penalties on an individual who, "knowing that he or she is infected with the human immunodeficiency virus," does not inform a sexual or needle-sharing partner of his or her HIV status.
The bill would also subject an HIV-positive person to the same fifteen-year penalty if she or he "offers or agrees to engage in sexual intercourse or deviate sexual intercourse with another person in return for a fee," regardless of whether any sex act actually takes place.
It is likely that, if passed, the validity of Kaufman/Maltese will be challenged on constitutional grounds. The due process clauses of the fifth and fourteenth amendments require specificity in criminal statutes, and civil libertarians point to the vagueness of such terms as "exposure," "sexual intercourse," "deviate sexual intercourse," and "offering" or "agreeing" to engage in sexual intercourse as grounds for constitutional challenge.
The major difference between existing law and the Kaufman/Maltese bill is that the former punishes "intent" while the latter punishes "knowledge." Proponents of the new legislation argue that intent is hard to prove. Opponents assert that the latter could actually dissuade people from being tested. After all, if they haven't been tested, they have no "knowledge' of their HIV status, and cannot be held criminally responsible under the proposed law.
Laura Engle is editor of Body Positive.