This Month in HIV: Sex, Privacy and the Law When You're HIV-Positive

Are Illinois and New York considered good states for this?

No. I would say Illinois is one of the worst. California has perhaps the most rational version of an HIV-specific law. In California, in order to be convicted, a person with HIV who knows that he or she is HIV positive must first engage in unprotected sexual activity without disclosing status, and with the specific intent to infect another person. Then, and only then, is that person guilty of a felony under California law.

Perhaps the advantage of the existence of that law in California is that it sets a fairly high standard. It targets only the knowing and intentional exposure of another person, with the specific intent to infect that person -- conduct that we know is pretty rare, that we have reason to believe is pretty rare. The existence of that statute would preclude prosecution of that person under a more serious criminal statute carrying a higher penalty, such as a murder statute.

How is "intent" different than "negligence"? For example, is there a difference between somebody who is lazy and does not want to disclose, and doesn't care very much about other people, versus somebody who really just wants to kill everybody they come into contact with? Or is it just considered intent if you don't disclose and you have unprotected sex?

That's a good question. Under the general criminal law, you have specific intent, and you have laws under specific intent, and then there are criminal negligence laws, where the person knew, or should have known, that by engaging in a particular series of acts or conduct, that he or she is exposing another individual to a serious risk of death, or serious bodily harm.

So, an example of that kind of law would be through vehicular homicide, where someone may be extraordinarily drunk, or driving their car in a manner that they know is placing people at risk, but isn't actually driving with the intention of murdering everybody in their path ... and yet may, through that negligent behavior, cause the death of people or a person.

But a lot of these HIV laws were passed because some politicians and prosecutors were frustrated by the requirement under the criminal law that you show that someone actually intended to do some harm, or behaved in a negligent manner. Generally, that's difficult to prove, especially if somebody is being sexually active, but used a condom.

Remember, as I mentioned earlier, that actually using a condom and trying to prevent transmission is, in most of the states, not a defense to prosecution. So the creation of many of these laws was an attempt to legislate away the requirement in most criminal law that you demonstrate some kind of specific intent or significant negligence.

For example, someone who is very informed about HIV, and knows, for example, that the risk of transmission is less than 1 percent, even without protection, and then uses protection, would really not be able to use that knowledge and that lack of intent to transmit as a defense under most state statutes.

But in California, that person would be able to use that as a defense.

In California, yes. Absolutely, in California. That would be totally irrelevant in Illinois.

Where you're kind of guilty before proven innocent.

Oh, you're just guilty. If you have HIV and you had sex ... that's pretty much all that the law requires for a conviction in Illinois.

I see. So, of the 24 states, are there other states that you could just sort of rattle off, to warn people about certain activities there? Is it the usual states? Is it the South and all the red states, versus the blue states?

No. It doesn't necessarily play out that way. If I were going to warn somebody, I would warn them not to be HIV positive and a person of color, having sex with a white person when somebody's trying to run for elected office.

The pattern in prosecutions is, again -- and I really can't emphasize this too much -- there isn't any apparent connection between prosecutions, and the publicity surrounding them, and an actual threat to the public health. There does appear to be a connection between a prosecutor's desire to showboat and to get free coverage for being tough on crime, and tough on all of the marginalized people that are associated with HIV. Tough on gays, tough on people of color, tough on people who are sex workers, and use drugs.

We had a listener write in to us. She was in a long-term, monogamous relationship with a man, and they were having unprotected sex. She was on the pill. She went for an HIV test with a friend and found out she was positive, and then later discovered that her boyfriend had not told her he was positive. When she confronted him, he said, "Well ... oh, well. Too bad." So what kind of recourse does someone like that have? Should she do something? She said she wanted to do something to protect other people out there.

If she wants to protect other people, if that is her goal, then the most effective thing that she could do would be to write about it, get involved with community service organizations, particularly organizations dealing with and doing outreach for women, and emphasize the foolhardiness of hinging your self-protection on what someone else tells you is safe and taking precautions based on what you think you know about someone else's sexual activity.

Here is someone saying that she was in a monogamous relationship, and that apparently is not true. Without trying to tease apart all of the different elements of her particular situation, and what other facts are there, the message, the takeaway message, is that as adults, we need to take responsibility for our own health. We need to empower other women to take charge of their own health, and not depend on some man to protect them.

Good advice. But in a place like Illinois, she'd have an easy case.

You indicated that she was looking to try to protect other people. If she wants revenge, there are things that she can do that carry the risk of criminal prosecution ... like getting a gun and shooting him. Or she could run to the local prosecutor, and she could further entangle herself with this person by trying to get him put behind bars. But that doesn't do anything to help anybody else.

Can a person prove that someone infected them by HIV strain, or some other biological way?

I'm a lawyer and not a scientist or a physician. From what I understand, you can show that the transmission occurred from somebody in a particular community. But you certainly can't show, you absolutely can't show, the direction that a virus traveled in: whether it traveled from the person who has been accused of a crime to the person who was the alleged victim, or whether it actually traveled in the other direction, or whether the infection occurred from somebody who lives a mile away or in the next county.

When you say "community," how big is the community? Is it like all of New York City, for instance, or is it smaller than that?

As I said, I can't really answer that. I don't think I'm qualified to answer that question, except to say that you cannot prove the direction in which a virus travels by existing technology.

Plus, it's still beside the point. I guess the issue is, if this is a discussion about how to get revenge, that's one thing. That's not my focus. That's not what the Center for HIV Law and Policy does, or really a relevant topic, if we're interested in public health.

If, in fact, these laws were based in public health, and served the public health, and were a response to public health concerns, there would be some connection between the statutes and impact on risk behavior, or at least some interest on the part of people who pass them as to whether these laws have had an impact.

I don't know of a single situation in any state where there has been attached to these bills a legislative directive that the effectiveness of the criminal law be assessed so that the issue can be reevaluated. There's also no attention to, or concern with, whether these laws have an unintended negative consequence.