Today, over 30 states in the U.S. make it a crime not to disclose one's HIV-positive status in certain sexual situations. In some of these states, a conviction will also place that person on a sex offender registry -- sometimes for life. This requires people to disclose their status as sex offenders every time they look for housing or employment or move into a new neighborhood. Legal scholar J.J. Prescott once noted that requiring people to disclose their sex offender status for the rest of their lives feels a lot like prison, and may actually make them more secretive than open.
Despite what you may have heard, laws requiring HIV disclosure during a sexual encounter are not enacted with the goals of sharing facts and promoting safer sex. They are designed to confuse facts and make it almost impossible that any sex act will happen at all, be it safe, unsafe, or unsure. Legally requiring HIV disclosure in laws ignores the facts about actual risks of transmission. And because it is almost impossible to become or stay friends with someone who has rejected you, these laws also ruin chances for some very creative kinds of relationships that might happen after sex, or even after just talking about sex.
One Man's Story
I once had an exchange of emails with a guy in Los Angeles whose online profile looked interesting. The conversation was going well, and we were about to make dinner plans to see if we would also click in person. Prior to this, we talked about what we were "into", as the phrase goes. We agreed that there would be no unsafe stuff and then made a list of fun things to do if we hit it off. This sort of "letter to Santa" may sound like the typical gay, cut-to-the-chase attitude that so many straight people pretend to find disgusting (but secretly want). In my case, though, coming up with a plan of action is also a way to make sure that I will have no legal responsibility to disclose my HIV status if I don't want to. Or, if I do want to disclose, to increase the chances that the other guy will still want to play.
This time, though, I was hoping for something more than just a hook-up. Maybe a little dating and hanging out, too. And I didn't want to risk any future possibilities by seeming less than honest at the start. This is one of the cruelest things about HIV disclosure. Either you say something and run the risk of killing a sexual encounter, or you keep quiet and just get together with the guy, probably killing the chances of turning a one-time thing into a more lasting relationship or even a friendship.
Anyway, this guy didn't sound all that great, so I told myself I wouldn't be losing that much if I told him that I had HIV. Plus, he told me he had attended medical school. So before we even met, I told him. I reminded him that we had decided to be safe and just to be, well, safe, I explained what having an undetectable viral load means in terms of risk. His reply was, "Hey David, thanks for your honesty. Unfortunately, I have to say that I would be uncomfortable playing. I know that safe play would most likely prevent anything. However, being a healthcare professional, I know that anything is possible. I apologize for being very shallow about this, but it's not something I am willing to risk. I hope you understand."
In all fairness, it is true that no matter what you list in your "letter to Santa" you can always end up with a surprise in your stocking. I found myself so hurt by this guy's rejection! It felt like intense discrimination against me, my body, my life, and my ... everything! It killed my cruising (and more) for a long and painful time. Although he didn't use the phrase, his need to be on the safe side actually separated us into two sides, placing himself on the safe side and me on the unsafe, automatically.
Especially irritating is that people who reject you on a completely irrational basis will often ask for your understanding. Clearly, they use the word to mean something like compassion or sympathy, as if they were the victims of your intolerance. But they hope nonetheless to capitalize on the rational sense of the term, and apply its legitimatizing power beyond the realm of reason. To describe an emotion as "understandable" seeks to make it reasonable. In the end, I replied "No, I can't say that I understand, but I'm getting used to people's unfounded fears." Even more passive- aggressively, I added, "If anything, I appreciate the fact that you bothered to reply. Most people don't." Talk about a back-handed compliment. And because I really couldn't let him off so easily, I finished with the rather devious send-off, "Good luck trusting future partners who tell you they're not HIV positive."
Most people who claim that they will not have sex with HIV-positive people have actually done so. This is because some people choose not to, or are afraid to, disclose their status. Or, as is the case with many people who are HIV positive, they just don't know. About 21% of people with HIV in the U.S. are unaware of their infection, and a 2006 study estimated that 54% of all new infections come from that group.
Often, the topic isn't discussed at all. For example, in online ads the shorthand DDF, for "drug and disease-free", may be used to show that someone claims to be HIV negative and expects others to be as well. More and more online profiles now include the date of the person's last negative test results. It would be interesting to ask if the date refers to the day the blood was drawn or when they received the results. I guess they have all decided to trust each other to know their status and tell the truth.
HIV- UB 2
The practice of announcing and dating negative test results may have started because it makes it seem as if the claim can be backed up by evidence. Yet it is just as pointless as claiming to be DDF. We know that HIV transmission is most likely when the viral load is especially high. This happens twice in the entire course of the disease -- when one is nearing death (and unlikely to be sexually active) and immediately after infection (when one is sexually active) and when the commonly used test (which measures antibodies to the virus rather than the virus itself) will come out negative. So when people tell you that they are HIV negative as of this morning, it could just as well mean that they are in fact highly infectious.
Simply said, unless someone has tested negative three months after the last sexual activity and has not had sex since the test, you just can't be absolutely sure. Of course, people can always decide to stick to safer sexual activities. But in that case, why would they need to know their partner's HIV status in the first place?
So why do people choose to believe someone who claims to be HIV negative when such belief is unsure at best and foolish at worst? That's like asking why people start smoking or why some text while driving. I haven't done the research, but my feeling is that "DDF" and "negative as of ..." are just ways to prevent any discussion of HIV because the topic is such a killjoy. This has nothing to do with lowering risk but is really meant to remove the very idea of risk from people's minds during sex.
HIV disclosure, whether required by law or expected as an ethical matter, is part of a system of prevention and depends on the idea of individual responsibility. But these conversations are often based on mistaken beliefs about risk. So why are they still expected? Do people really believe in the power of this system?
I once called a guy on what seemed to me an odd contradiction in his online profile. To the question of whether he practiced safer sex (a far more useful bit of information than HIV status) he had selected "Always". Yet on the list of "Things I'm into" he included "Barebacking". This is in fact a very common occurrence. When I asked what he meant, he explained, "When the guy is 100% percent sure he's clean I don't use condoms, but otherwise I always do." Any sign of irritation or baff lement on my part could have jeopardized the hook-up so I kept quiet. After asking more questions, I came to the conclusion that certain people do not understood barebacking to be inherently risky. To them, it all depends on the other guy's status. That seems logical, but is the internet in general, and cruising sites in particular, a place to turn to when looking for the truth? The reality is that a negative status is often far less certain than a positive one.
But who really cares if what people write in their online profiles sounds dumb or even AIDS-phobic as long as we all get laid, right? Should we take such ignorance and rudeness as outright rejections? Maybe not. What these online cruisers really offer to other cruisers, whether they mean to or not, is the possibility to read written mentions of HIV as unwritten invitations not to care about it. But to say in an online profile that you don't really care about a partner's HIV status may drive some potential playmates away because they will assume you're HIV positive yourself and are attracting others for the same reason. To say you are HIV negative or to request an HIVnegative partner when you really don't believe what a potential hook-up says could mean that you're using the system to fight the structures that oppress us.
In summary, there are five basic reasons that questioning partners about HIV status before casual sex is not the right approach:
- The information is useless. A stranger has little incentive to be honest with another stranger, and since no emotional bond exists, there may be no concern for the other's well-being.
- They may not know they have HIV. Even if the person is concerned for your safety, over half of all new infections may come from people who do not know they have HIV. And even if they claim a recent negative test, they could be in the process of seroconverting, in which case their HIV viral load would be extremely high.
- It could lead to greater risk. Once you accept the assumption that someone is negative, you may do things that you feel are unsafe. Particularly in the heat of passion, very risky behaviors like unprotected anal sex may be practiced because the partners believe they are both negative. This is a particular problem in new relationships, in which the condoms often come off quickly because both partners think they are negative. Many people have acquired HIV in this scenario, often because the positive partner did not know he had HIV.
- It really shouldn't matter. It's actually quite easy to prevent HIV transmission during sex, by taking some simple precautions (such as knowing how to use a condom correctly or avoiding high-risk behaviors like anal sex). If the person with HIV has an undetectable viral load and uses a condom, the chance of transmission is nonexistent.
- It encourages nondisclosure. People with HIV learn very quickly that disclosing will limit their chances of casual sex and will often lead to painful rejection. Every time negative people reject positive people, they train them not to disclose.
To return to the doctor from L.A., he never bothered to ask my status and was willing to play safely with someone without any mention of HIV. Yet he couldn't bring himself to do it once he knew. In the end, it wasn't the possibility of HIV itself that was the problem, nor even a lack of knowledge about the risks of transmission and how to minimize them. The problem was -- as always seems to be the case in any don't-ask-don't-tell situation -- knowledge itself.
Perhaps one solution to the problem of online attempts at serosorting is for hook-up sites to stop including that field in their sign-up pages. People can add the info if they choose, but including it in a menu of profile choices makes it seem as reliable as age, weight, or hair color (and of course, people never lie about those traits online). Barring that, a warning attached to each profile about the dangers of basing sexual decisions on a person's claimed status might at least alert users to the dangers of trusting such info. It might even encourage more people with HIV to disclose before sex.
David Caron is Professor of French and Women's Studies at the University of Michigan. His forthcoming book is tentatively titled: Sharing HIV: Tact, Contact, and Disclosure.