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HIV/AIDS Blog Central

My Fabulous Disease

Sex While HIV Positive: The New Criminals


A Video Blog

By Mark S. King

August 31, 2010

As you and I relax here, surfing the internet, an HIV positive man is sitting in a Texas prison, serving a 35 year sentence for spitting on someone. In Michigan, an HIV positive man was charged for not disclosing his status under a bio-terrorism statute. And there's a statute on the books in Iowa that can jail you for kissing someone without disclosing.

The level of stigma, ignorance and injustice of these examples is frightening, and caseloads are growing. Already, there have been over 400 prosecutions in the United States and more than 200 convictions.

And just weeks ago, Nadja Benaissa, an HIV positive German pop star, barely escaped prison when a judge gave her a suspended sentence for not disclosing to her sexual partners.

This is an emotional issue that carries some baggage. Many of us have a friend who was infected by someone who lied about their status or didn't disclose, and these infuriating instances make me want to see those people "pay" for what they did. But the more I have learned about the criminalization of HIV non-disclosure, the more I am convinced these laws are applied badly and actually do more harm than good. If I don't get tested, I can't be prosecuted for not disclosing my status, right?


Episode 20 -- Sex While HIV Positive: The New Criminals

This was a hot topic at AIDS2010 in Vienna, and this month it arose again at the Gay Men's Health Summit in Ft. Lauderdale.

At the Gay Men's Health Summit, I spoke with an iconic figure in the AIDS movement, POZ Magazine founder Sean Strub following his workshop on criminalization. Sean is the force behind the Positive Justice Project, which advocates against HIV criminalization as part of the HIV/AIDS Center for Law and Policy.

Sean does a terrific job at explaining the harm to public health created by criminalization laws. I'd also like to mention the great work being done by Edwin Bernard in Europe and AIDSMap regarding this issue. And of course, TheBody.com has a great overview of articles on this topic.

Do you support laws that criminalize people who don't disclose their status before sex? Should they be repealed? I'll be interested in your reactions to this interview!

In the meantime, my friends, please be well.

Mark

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Visit Mark's live blog at www.MyFabulousDisease.com.

See Also
TheBody.com's Just Diagnosed Resource Center
Telling Others You're HIV Positive
More on U.S. Laws/News Regarding HIV Disclosure

Reader Comments:

Comment by: DMS (Johnson city,Tenn) Tue., Jan. 4, 2011 at 2:46 pm EST
Well my daughter has been charged with criminal use of HIV,And the person that had sex with my daughter knew she had HIV, BECAUSE THIS Individual was at my daughter's while I was there and ask me if it was a fact that my daughter had HIV and I said yes. My daughter does not hide the fact that she has HIV, because she would never try to harm another being. But she was very drunk that day and the person let her drive his car and they stopped and had there clothes off and the police were called, but know one seen them having sex, my daughter said she was so drunk she does not even remember the police talking to her. And if my daughter did have sex with the person she would have him wear a condom. But my point is that the person did not accuse her, the district Attorney's office just decided to charge her with this crime.How uneducated is our court systems to HIV and when it should really be concided a crime. Hey by the way DR., She is co-infected with HEP-C,but not being charged with passing HEP-C TO another person.
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Comment by: B. Allen (Washington, DC) Wed., Oct. 6, 2010 at 3:15 am EDT
If I recall correctly, according to the latest statistics, in our Nation's Capital, 1 in 20 adults are HIV +; 1 in 5 MSM are HIV +; and 1 in 4 HIV + individuals (regardless of orientation) are not [yet] aware of their positive status. Given this information, it seems logical to me that anyone choosing to engage in sexual activity has a responsibility to assume that 1, a sexual partner is LIKELY to be positive, and 2, that they themselves MAY possibly be positive. Thus, both partners have a shared responsibility to engage safely by using condoms. If a condom breaks, anyone believing himself/herself to be negative should seek immediate PEP, get tested, and tested again in a 3-month follow up. PROPER condom use is NEARLY 100% effective in preventing HIV transmission. PEP in the event of a breakage is just another layer of prevention. If our community were to follow this model, sexual transmission of HIV would be stopped dead in its tracks, making disclosure issues a mute point (at least outside of the concept of transparency in relationships). Other than in an instance of forced sex (rape), there's no excuse for not insisting on condom use. There's simply no way to know for sure that your partner du jour is negative, even if they insist/believe they are. This of course does not apply to monogamous long term relationships that have followed proper testing recommendations and "closed the window".
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Comment by: Peter (London) Tue., Oct. 5, 2010 at 5:39 pm EDT
We are so happy that the U.S. justice system makes even swingers' parties safe places to have unprotected sex. We all admire the courage of two ladies who testified about sex with HIV-positive airman during such parties. Oh thank you so much.
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Comment by: Brenda Chambers (Salt Lake City, UT) Thu., Sep. 16, 2010 at 6:52 pm EDT
Mark,
I love your video blog and have to say it was an honor and pleasure sharing dinner and our workshop together during USCA. You are such a sweet person and I am grateful for the work you do.
Brenda
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Comment by: Ed C (U.S.A. : Georgia : Atlanta) Wed., Sep. 15, 2010 at 4:29 pm EDT
Now even the accusation that you are having sex without informing partners is becoming a tool of vicious people. In the south especially, just being accused of such a thing can ruin your life, you will be jailed and spend countless time trying to prove your innocence, losing your job, your friends. It is nearly the stigma of being accused of child molestation, even if proven false the damage is already done and your life will never be the same.
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Comment by: John H. (Houston, TX) Wed., Sep. 15, 2010 at 2:48 pm EDT
I think we should disclose our status to potential sexual partners. Any disease someone has not just HIV that can be transmitted by sexual contact or kissing should be disclosed. We have no right to take someones life in our hands. Some people have a nature of trust and will get burned if we don't have laws to protect them. It's sad that these trusting people become victims of those that put getting off above the safety of others.
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Comment by: TJB (MD) Sun., Sep. 12, 2010 at 10:06 pm EDT
Not to mention the whole aspect of he said/she said, or he said/ he said. In a court of law how does anyoen PROVE that they did or did nto say something! I can easily see someone beign prosecuted even if they did reveal to their partner their + status, but in court how do they prove that they did???!!! Bottom line is, peopel need to be honest when asked abotu their status. But these laws that equate intentionnally or unintentionally infecting someone with MURDER are competely unjustified. It is not the same thign as pointing a gun to someone' shead and pullign the trigger or slittign their throat open! Let's start prosecuting people for transmitting Hep C or H1N1! I bet as many or more people die from those illnesses than AIDS in the US at least.
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Comment by: rob (vancouver ca) Sat., Sep. 11, 2010 at 2:06 am EDT
A gripping fear runs deep within the negative masses ... The media plays upon this sensationalistic hysteria creating a dynamic of insulary denial within that major section of all societies... It is politically correct and ethically & morally justified in the minds of the lawmakers and the courts to hold human beings accountable for a responsibility of conscience. That all human beings are fallable leads me to understand that until an out-and-out cure is discovered, anyone with hiv will be punished as the new lepers; whether its underground or under Law. The leaders of today are the teachers of the hypocratic oath with out the swearing in.
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Comment by: HIVan (Europe) Fri., Sep. 10, 2010 at 9:34 am EDT
Hi Mark & folks,
I am afraid that the entire criminalisation discussion worldwide is on the wrong track.

1. The UNAIDS position on HIV criminalization is that indirect forms of intent are legally equated with direct intent. That means that negligence (incl. failure to disclose, failure to use condoms, failure to take ARV during pregnancy and deliver the baby in a natural way) equals intention to infect and it equals crime. Fullstop. Ask high ranking UNAIDS officials - they will confirm what am I writing.

2. In today’s global world a person who test positive in a county A (for instance in a country with bad health care system) can emigrate to country B, intentionally infect a girlfriend in a country B, get married and get permanent residence, subsequently test positive in a country B and get a free health care. Is it happening? Very much so in Europe. Is it a crime? Yes/No? Is it punishable? No.

In the world which cannot even in the legal theory guarantee that „HIV criminals“ are punished based on equal legal principles, HIV cannot be a crime.
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Comment by: Peter (Sydney, aust) Fri., Sep. 10, 2010 at 6:57 am EDT
If you are negative and want to stay that way... ASSUME EVERYONE IS POSITIVE, AND HAVE SAFE SEX. That statement kept me negative for 15 or so years. Unfortunately I slipped up a few times and became positive. My fault. I take complete responsibility. I never thought of the person who infected me as a criminal even though I found out later he knew he was positive. Instaed it was my stupidity assuming he was 'possibly negative'. Don't always expect positive people to disclose. The law and stigma doesn't encourage it.
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Comment by: liz (kenya) Fri., Sep. 10, 2010 at 1:50 am EDT
Knowing and disclosing one's status is a two way responsibility. one should make an effort about knowing a partner's status before engaging in sexual relations. It is a burden enough to be HIV positive and the discrimination one gets after disclosure from people so let everybody be responsible. Demand to know your partner's status if you want to take it further. Otherwise do not assume i am negative and then start blaming others for being irresponsible by having not asked.
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Comment by: Michelle (New Zealand) Thu., Sep. 9, 2010 at 11:56 pm EDT
I was infected by a man who lied when we discussed HIV. He stated that he had not had sex since he had been tested negative. I trusted him because I loved him and later found out that he was delibrately trying to infect women. Unfortunately, in his country it is not a criminal offence. I say "unfortunately" because there is no deterrant for him and others like him to change their behaviour. Due to the fact that in his country HAART is not widely available, he is potentially doling out death sentences to others and can do so without fear of suffering any consequences. How can that be right?
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Comment by: TJB (MD) Thu., Sep. 9, 2010 at 10:58 pm EDT
Anyone who is HIV- and plans to stay that way has as much of an obligation to ask their sex partner(s) about their status. If someone doesn't ask before engaging in unsafe sex then it is reasonable to assume they are HIV+ because they wil eb soon if they are nto even bothering to ask their partners status before havign usafe sex. Among HIV+ MSM peopel who don't ask are assumed to be +. Infecting someone is not equal to murder. HIV is nto a "death sentence" any more. It is a manageable chronic illness. Yes some peopel do die from it, but usualy if they are not seeking or followign treatment protocols. More people die every year fromthe flu or numerous other illnesses thatn from HIV (at elast in first world countries). I would rather have HIV than Hep C! There are not many treatmetns for Hep C as far as I know. I see MSM all the time looking for BB sex and are negative, btu will only do it with a partner who SAYS thay are negative. What they are naive about is that there are MANY men who will lie about hteir status to get you in the sack! It is wrong to lie about status, but failure to ask a partners status is negligent and should nagate any criminal repurcussions against someone who did not disclose (and weren't asked).
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Comment by: Deb D ((Chicago,IL)) Wed., Sep. 8, 2010 at 6:49 pm EDT
"MORALITY CANNOT BE LEGISLATED, BUT BEHAVIOR CAN BE REGULATED."
COME ON PEOPLE, WAKE UP!!!!!! HIV/AIDS WOULD NOT BE SUCH A PANDEMIC STATE IF EACH AND EVERY ONE OF US WOULD TAKE RESPONSIBILITY!!!! No individual on this earth has the right to deliberately try to inflict HARM on another human being! We would not have epidemic portions of this disease if each and every positive and/or negative person would take responsibility to PURPOSEFULLY SAVE A LIFE!!!! It happened to me, someone deliberately set out to bring harm to me by knowing that he was HIV positive when I asked him his health status, and even faking the results!All in the name of LOVE! Really scary! All the while having affairs with both men and women, just intentionally trying to hurt as many people who would allow him. Thank goodness for my committment to being healthy by adhering to my annual paps and physicals! But there are people in this world who could care less about the safety of others and intentionally want to inflict destruction! If HIV Laws were initially in place maybe alot of lives would be saved! No one should have to be victimized by people who posess no moral fiber whatsoever! By having laws in place many people are being spared! But lets take a stand to not engage in unprotected sex without being tested together! Trust no one! More important is the fact that if an individual can easily have SEX WITHOUT PROTECTION you better believe one thing for certain and two things for sure THERE IS DEFINITELY SOMETHING WRONG!!! People can only fear what they don't know!!!
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Comment by: Rosetta M. (Buffalo, NY) Wed., Sep. 8, 2010 at 7:51 am EDT
Where herpes is a much different virus, 1 in 5 Americans have it. It is estimated as high as 49% in AA women of child bearing years; yet we never hear anyone admit to herpes, we still call an oral herpes outbreak a "cold sore". It is our culture that is at the root of disclosure issues. So, if we can't discuss/teachspeak the TRUTH about sex and sexual health, HIV disclosure issues will remain...start talking about your herpes and maybe one day it will be safe to disclosure you HIV status.
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Comment by: Tue., Sep. 7, 2010 at 11:28 am EDT
According to law in Canada you cannot consent to unprotcted vaginal or anal intercourse if your partner has not disclosed regardless if you asked prior to sex about their HIV status. Given the low rate of HIV in Canada it isn't too unreasonable to assume your partner does not have HIV especially if you're not in a high risk group aka your a heterosexual who does not have sex with people from endemic areas.

This constitutes aggravated sexual assualt even if you don't ask prior to sex and they know they have HIV. Yes the punishment may be worse if your lied about your status and decieved versus just not disclosing.
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Comment by: H Lee (Bangkok) Tue., Sep. 7, 2010 at 9:23 am EDT
It's fairly clear that anyone who knows they have HIV owes a duty of care to the people around them should a circumstance arise where they might pass it on; i.e. virtually any sexual encounter as things can go wrong - cut lip, broken condom, etc etc. As for don't ask don't tell, I think if it could be shown they should reasonably have known (e.g. sores, known previous + partners etc) then that's their negligence in not checking.

Logically, similar should apply for Hep, Herpes, STDs, warts carriers, rather than using that in reverse as a reason NOT to have to say something for HIV sufferers.

Yes, it will end up with a few lonely nights, maybe a few lost friends. But we owe it to the people around us to give them the right to choose with a full set of data for something that carries a risk such as pretty much most forms of sex.

Failure to do so and any resultant prosecution...I agree the spitting sentence seems a bit OTT but even so I don't have that much problem with SOME punishment; its assault anyhow (spitting) but even with a tiny tiny risk it is up to us to know we have the capacity to damage others by spreading the disease, and thus play the part to help not contribute to it.

The takes two to tango line only really works if the infected person really doesn't know they are HIV +; otherwise it is in the 'she was asking for it by wearing that short skirt it takes two to tango' rape defense territory.

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Comment by: Charly (Orlando, FL) Tue., Sep. 7, 2010 at 5:53 am EDT
If people believe to be negative, it is their responsibility to ask about their sex partner's HIV status if they really care for it (and most likely the question usually arises when sex is about to occur not right off the pick up line). If they do not ask then it seems to me they do not care, so disclosing should not make any difference, right? If having to disclose HIV status is necessary to ANY potential sex partner, then HIV people might as well carry a POZ tattoo on their forehead. I believe criminalization is necessary for those who LIE when asked, not when they do not disclose.
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Comment by: Sun., Sep. 5, 2010 at 1:14 pm EDT
One last comment you go NYAG.

About the toothbrush and razor thing, no if one of your kids somehow became infected like that which would be extremely unlikely it would be an accident.

I'm not sure if you've told your children about your HIV status but I'm sure you've told them not to do that and given them so reason why so in a sense you were warning them. Albeit they're kids so it's somewhat different.

With that said you may want to take steps to be more vigilant like thoroughly wash your tooth brush in case of bleeding and use disposable razors. You could also thoroughly wash your razor after use and make sure there was no blood left on it.

About the needle stick she got PEP right away and your viral load wasn't that high 10-20k given all of this it would be very unlikely for her to end up being HIV positive from this exposure. Again this would be an accident because every precaution was taken there was no deception or non disclosure. You wouldn't be a criminal or demon in any way shape or form if an accident happened with you or your kids, not to mention the risk from these hypothetical instances are extremely unlikely especially the razor toothbrush.

For example if your X BF was afraid to tell you his HIV status for whatever reason and he insisted to use a condom every time and never told you of his HIV status if one time the condom broke and he told you okay I'm HIV positive. Then he could have informed you about PEP and told you to get it right away if this had happened the odds of you being HIV positive from that incident would be extremely low. He deceived you and gave you a life sentence of being HIV positive to me he's a demon and a criminal, no better than someone like Philippe Padieu. Not much better than the guy who injected his own son with HIV so he wouldn't have to pay child support.

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Comment by: Sun., Sep. 5, 2010 at 12:53 pm EDT
1)No I don't think laws relate to viral loads Although if you're on HAART and you expose someone to HIV and they don't get infected you could still be charged but it's likely they would go easier on you since the transmission risk is lower. Therefore in a sense you pose less of a risk.

2)It's my understanding most of HIV's drug resistance mutations come from HAART that isn't undetectable(less than 50 copies per mL). Getting a strain of HIV that is drug resistant is certainly possibly but I don't think the person being on HIV medication would pose a different threat unless their drug cocktail wasn't effective at suppressing the viral load to undetectable.

Previous mutations(inherited) are possible but I'm not sure if a new one drug resistance one could happen it's certainly possible.

Obviously another mutation is possible due to the fact it's a RNA virus. For example in BC, Canada the number of infections yearly since HAART has been introduced is half of what is was before HAART came into the picture.

About your X-BF he is pretty cruel to prey on vulnerable young girls and infect them with HIV without disclosing his HIV status. Not too much different from the Philippe Padieu who got what he deserved.

With HIV you can easily be ignorant to it until it happens to you especially if you're a heterosexual. Although depending on where you live the number of HIV infections can be pretty low. For example the area I live has 3.5 million people in one calender year there were only 234 new infections this being two years ago. There were only 5,000 reported infections between 1985 and the end 0f 2008

If someone know's they have HIV and they don't disclose they are basically ignorant to causing someone else harm at the very least they're reckless and in some cases intentionally doing damage. People need to be vigilant and protect themselves but for those people who know they're HIV positive there is no excuse to keep your HIV status a secret and infect others.
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Comment by: NotYourAverageGirl (West Coast) Sun., Sep. 5, 2010 at 2:43 am EDT
one more thing I forgot to add to my prior post from West Coast/Girl: just last week I was told my nurse had a needle stick after taking my blood. My VL was around 20k at that time (the new test a few days later have me at 10k) but imagine my feelings of despair had I discovered she contracted HIV from me. We were in a hospital setting so she was most able to get the prophylaxis immediately.

Although now that thought is going to be burning in my mind for a long time 'did I infect someone?' and also what civial or criminal liability if any, would ever result as a matter of fear-based law changes. The medical worker's risk is known in their job but I now have given thought that it may not be assumed by the medical staff taking labs that I am, or any of their other patients, are in fact HIV+.
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Comment by: NotYourAverageGirl (West Coast) Sun., Sep. 5, 2010 at 2:12 am EDT
I have a few concerns when it comes to this matter: 1) are laws considering HIV viral loads as evidence of intent to transmit? 2) are people thinking about the possibility that supressed viral loads HIV controlled by meds being transmitted could create a drug resistant mutation in the new host? and 3) why would anyone, poz or not take chances of being introduced to any new and unknown pathogen science and medicine has yet to discover?

I was infected, at 16, by my boyfriend, an adult, who knew he had AIDS in the early 90's. We had unprotected sex hundreds of times and I also was pregnant (but miscarried) by him yet had not yet contracted HIV. He came clean after about a year of dating and another PCP infection. His disclosure was a couple months too late for me. The fact that I was a minor and he was an adult I feel that despite my willingness to participate in risky behavior he had more wrongdoing simply because he was using my naivete to carry on without disclosing and furthering my risk of infection. He goes on today to do the same thing, seeking teen girls who wouldn't question his HIV status. At least the statutory laws cover a portion of his actions.

I since went on to have two HIV- children (1 without ART, the other in the 3rd trimester only) and my feelings about criminalization relate back to the what-if's of their turning out positive or even now as they use a razor or toothbrush of mine (kids don't listen!). Am I now the demon/criminal?

This is a touchy subject. Ignorance is still king and that is why the growth of new HIV cases remain disgustingly high. Nobody needs to be "taught a lesson" (both the infected and the infectee). All of us need education, destigmatization and policy based on fact for putting a severe halt to new HIV infections. Morals has nothing to do with it. Placing a higher value on the human life is our answer.
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Comment by: Del (Lawrence, KS) Fri., Sep. 3, 2010 at 6:27 pm EDT
Purposeful ignorance of the risks of sex is not a solution. That includes not disclosing AND believing blindly that one's partner has no STDS unless s/he discloses. That said, the laws--as they are right now--are very likely to prevent people from getting tested and treated. Not getting tested should not be a conflated with innocence, and being positive should not be associated with crime.
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Comment by: Drew(Sydney AUS) (Sydney , AUS) Fri., Sep. 3, 2010 at 4:11 pm EDT
Hey Mark,
This is such an important issue and I thank you for raising it. Criminalizing an individual with HIV for non disclosure I argue is not the way forward it simply extends the Stigma and drives individuals "underground" so to speak.

Plus Post-1995/96 with the advent of HAART HIV is no longer a death sentence so I really don't understand how someone could be thrown into jail for 25 + yrs for such an action.
Love your Blog.
Cheers Drew (Sydney, AUS)
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Comment by: Susan B. (Addison, TX) Fri., Sep. 3, 2010 at 3:08 pm EDT
Hi Mark, I was a key witness in the trial leading to conviction of Philippe Padieu last May. Padieu received 45 years for Aggravated Assault with a Deadly Weapon based on knowingly/intenionally infecting 6+ women with HIV. I think that was a just verdict based on the circumstances and evidence. While I agree with you that some of the examples you mention above are outrageous (spitting, kissing, etc.). I hope we can all find some common ground on this topic, because there certainly are people like Padieu that are on a mission to inflict death and destruction. Lets work on laws that are specific and require the appropriate scientific and medical evidence. in addition to dealing with intent to harm. Now that I have HIV, I certainly understand living with stigma. As I've told my story I've been working to use our case as an example that can help educate people about HIV. I Hope we can all work together.
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Comment by: Cindy (Tennessee) Fri., Sep. 3, 2010 at 9:53 am EDT
My ex-husband is HIV+ and got it during a drunk encounter with a man who suspected he was + but had never been tested. After my ex was diagnosed, the other man finally (after about 6-7 months) agreed to be tested and sure enough he is +. What bothers me is my ex still trolls the internet for sex partners and will make this statement: I tested negative in March 2009. What he fails to mention is that he tested positive four months later.

Granted I'm a bit biased but I think some degree of criminilization is in order. I don't have all the answers. Nobody does. But to deliberately expose someone to something that's potentially deadly IS criminal. Don't you want the person who sends anthrax through the mail to be prosecuted? Or the group who puts ricin on a crowded subway car?
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Comment by: Patrick (Redding Ca) Fri., Sep. 3, 2010 at 9:35 am EDT
I have always felt that the person with HIV must disclose their status as they are the person who can in a sense commit murder by not disclosing their status. Their partner of course has to accept the fact that anyone they have unprotected sex with "has" HIV and act accordingly. Their sexual partner is consenting to sex NOT death.
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Comment by: Allen W. (Benton Harbor, MI) Fri., Sep. 3, 2010 at 9:09 am EDT
As a recently diagnois person (October 2009) I have become more and more aware of the laws surrounding HIV non disclosure and yes a lot of poz people can admit to one night stands or two night stands without disclosing status. I think that laws out there now are so backwards towards people not disclosing their status. Some don't disclose because there is so much stigma out there aganist HIV that there is sorta like a "don't ask I am not telling" type deal with disclosure. See I think first we have to get past the stigma and start educating law enforcement and others on HIV and the effects it can have on the mind when it comes down to intimacy and other modes of transmission. I think that Non-disclosure should be judged on a case by case level.
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Comment by: Russ (Upstate SC) Fri., Sep. 3, 2010 at 6:36 am EDT
Why is there no law requiring disclosure of other illnesses before sex? What about HPV, herpes, or Hep A B or C which can all be chronic or fatal?!?
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Comment by: Richard (Boston) Fri., Sep. 3, 2010 at 12:44 am EDT
The absurd notion that you can prove in an intimate encounter that the 'infected' partner never disclosed to the supposed uninfected partner (always innocent clean party) BEYOND OF SHADOW OF A DOUBT blows my mind and makes me truly believe that the people making these laws have never been in an intimate encounter. And to add insult to injury, sick draconian sentences that convicted murders don't even get. It's like some sort of scary totalitarian future state when it comes to HIV and the stigma and America and the world needs to get over it. Not to mention sex phobia.
Sean said it best in this vidio HE SAID HE SAID, OR HE SAID SHE SAID. Do we need a written affidavit before sleeping with someone? Imagine a jilted lover wanting to get back at an ex. Imagine someone very confused about their sexual orientation, first consenting to sex and then in a panic tells the authority "he didn't tell me" .. that will be 30 years at Rykers Island FOR A VIRUS.
Poz people we all had better wake up before your civil rights are trampled. We already have no medical record privacy rights that other have because of our "special" virus that is apparently more deadly than we ever dreamed
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Comment by: Richard (Boston MA) Fri., Sep. 3, 2010 at 12:39 am EDT
I’m frankly appalled at the majority of the comments here and in comments whenever this subject is examined. As a POZ person I refuse to stand by silently and allow any authority take away my humanity by suggesting I am some sort of “lethal weapon” under the law rather than the human being I am, which is exactly what is being talked suggested here.
Positive people have come to this virus for many reasons and circumstances but for the most part in these cases we are guilty until proven innocent, but of course how can we pariahs ever be truly innocent, we are the new sexual outlaws apparently.
The HIV panic that I see when the public comments on this subject is breathtaking in 2010, is the general public still that uninformed about the virus? I’m afraid so. Panic and hysteria almost 30 years on. Lock us up, throw away the key, I DON’T THINK SO.
The absurd notion that you can prove in an intimate encounter that the ‘infected’ partner never disclosed to the supposed uninfected partner (always innocent clean party) BEYOND OF SHADOW OF A DOUBT blows my mind and makes me truly believe that the people making these laws have never been in an intimate encounter. And to add insult to injury, sick draconian sentences that convicted murders don’t even get. It’s like some sort of scary totalitarian future state when it comes to HIV and the stigma and America and the world needs to get over it. Not to mention sex phobia.
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Comment by: R (Denver, CO) Thu., Sep. 2, 2010 at 11:44 pm EDT
So far, out of 5 comments, it seems they are running 4 to 1 in favor of criminalization. How many of us who are hiv+ would have gone through with the act had we known that our partner was also positive? Damn few, I suspect. While one can make the argument that it discourages testing, I suspect that there are more who know that they are positive and may very well infect someone else. That is so morally reprehensible that, in my opinion, it overwhelms the weak argument that attempts to blame the victim. Perhaps we should also not walk down that dark street at night because that poor assailant cannot help but attack us. That is garbage! If you know that you are positive, you have a moral obligation to disclose that fact.
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Comment by: Happy Guy (Miami) Thu., Sep. 2, 2010 at 1:54 pm EDT
People with HIV should definitely disclose the condition before having sex. Many would have preferred to have a choice and know before hand. It is not only irresponsible but cruel. A condom may break, mouth may bleed, etc. Even a kiss is risky under certain circumstances and the worst place to find about it is from a doctor's office. Sex is also a very important part in the development of a relationship so if you disclose your condition and the other person accepts it then you probably have found a person worth keeping around.
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Comment by: ScotCharles (Los Angeles) Thu., Sep. 2, 2010 at 5:40 am EDT
I am not certain of all criminal statutes regarding this issue; but I imagine that the elements of proof of the statutes are:

Certain knowledge of one's infection with HIV

A failure to disclose one's HIV positive status

An act willingly undertaken by the HIV infected person which is certain to result in HIV infection

If all elements of proof are present, then HIV is no different than a gun in your hand and one would have at least a felony assault.

The spitting and kissing statutes are ridiculous as HIV infection from those acts is not certain. I am also not sure that previous sexual activity in the absence of a positive HIV test would provide the certain knowledge necessary for a crime.

I would be more worried about a tort action since the elements of proof drop the certainty requirement for reasonable expectation. If you have assets and are HIV positive, I believe you should disclose your HIV status openly to avoid litigation.

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Comment by: Anonymous Thu., Sep. 2, 2010 at 3:55 am EDT
I think part of the issue is that in some countries or city's the rate of HIV infection is only around 1 person in 5000-10000 people. If you're a heterosexual it's not too unreasonable to let the worry of HIV slip your mind and in the heat of the moment not use a condom, or allow your partner to take it off.

Therefore if you're partner has reason to believe or knows they're infected with HIV it's their duty to disclose their status or at least announce their risk factors, especially before engaging in unprotected vaginal or anal sex.

I agree there is some level of shared responsibility, that's not to say someone is off the hook for not disclosing. In my humble opinion if you're in the heterosexual category and on average only 1 person out of 7,000 in your city has HIV it's not too unreasonable to assume your partner doesn't have HIV or at least let it slip your mind during an encounter(when you know you don't have HIV). The highest risk factors being IV drug use, those who engage in MSM and females who have sex with males from endemic areas.

If the worry of being charged for infecting others by not disclosing is preventing some people from getting tested. If there are no laws against reckless or intentional HIV transmission what's to prevent someone from recklessly or intentionally infecting others once they get tested and know for a fact they're HIV positive. There won't be any concern over consequences or repercussions from someone who is negligent over others health and well being.

It's highly likely most people would still disclose and have a moral compass not to play with other people's lives like that. With that said there could be a rise in HIV infections with people who have no concern about infecting others, thus having sex with the whole town so to speak when they have HIV. This could possibly lead to vigilante justice when someone finds out they've been infected and the person responsible won't be held accountable for their actions.
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Comment by: Wed., Sep. 1, 2010 at 5:20 pm EDT
Personally I'm in the favor of criminalization and I think in fact someone should be able to be charged without having ever tested if you can prove they had reasonable knowledge that they were infected with HIV. For instance if you can prove they knew one of their X partner's had informed them they had HIV and they didn't get tested, if they had sex with someone from an endemic area, knowingly shared IV drugs with people HIV they knew as HIV infected, etc.

Obviously this would be very hard to prove in most cases. There is a case in Switzerland where in fact someone was charged with reckless infection of another with HIV without having ever tested positive.

I do agree though the flaw is that in many cases someone could avoid being tested even if they suspected they have been exposed to HIV when you consider some of their risk factors. This is in part because then you don't have to worry about being in trouble for not disclosing(as you put it) not to mention the stigma that comes along with having HIV. This is very morally wrong basically you're putting other people's health and well being in danger because you aren't competent enough to go get yourself tested. If someone is doing this to avoid being charged it's a loophole in the system.

The man being in jail for spitting on a police officer for 25 years is totally ludicrous and other cases like the Iowa kissing law make HIV related laws look really bad and in some improperly enforced. At the same time the legal system isn't perfect and you need competent police, law makers, prosecutors and jurors. The fact that they are many innocent people sitting in jail for crimes they didn't commit(murders and rapes etc) is proof of this.

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Comment by: Anthony J (Fort Lauderdale) Wed., Sep. 1, 2010 at 11:47 am EDT
There is such a fear in people from this that they chose not to get tested. As you stated, it is a "don't ask, don't tell" situation. There is also already a fear of disclosure in the positive community. Now this is compounded with the stress of prison if they do not. This only forces syro-sorting and segregation. The community is already separated and living in fear. Why make it worse? Why isn't there shared responsibility? I am a positive man who openly discloses but I also feel that it is partially the responsibility of the other person involved to protect themselves.
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Mark S. King has been an active AIDS activist, writer and community organization leader since the early 1980s in Los Angeles. He has been an outspoken advocate for prevention education and for issues important to those living with HIV.

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