Would a Disclosure Contract With My Sex Partners Protect Me From HIV Criminalization?

There's much agreement in the worlds of public health and HIV advocacy that HIV criminalization -- in which people living with HIV are subject to different laws or regulations that people who do not have HIV -- is a terrible way to try to confront the decades-old epidemic. Yet, it is a pernicious reality in many municipalities, states, and countries around the world, and people with HIV are locked up right now simply because someone claimed that they did not disclose their HIV status. Criminalization implies that people with HIV are the problem, rather than putting the spotlight on laws and policies that encourage others to pile on blame and shame instead of learning the facts about HIV prevention, transmission, and treatment.

In recent years, people with HIV and allies have joined to fight for the modernization or elimination of laws that criminalize HIV. In fact, they are holding their third national gathering next month -- the HIV Is Not a Crime National Training Academy -- and have started to see real victories in changing hearts and minds and laws and policies around the country, as well as joining forces with others around the world.

But these laws still exist in many places. What can people do to protect themselves? Tiffany Marrero, who has been living with HIV since birth, uses a contract with her partners to verify that she disclosed her HIV status to them before any sexual contact. But are contracts a way to stay safe? We spoke with Ronda Goldfein, Esq., the executive director of the AIDS Law Project of Pennsylvania and TheBody's Q&A expert on HIV-related legal issues, to learn more.

Ronda B. Goldfein, Esq.
Ronda B. Goldfein, Esq.
Credit: Donald D. Groff

JD Davids: Why would people with HIV choose to use a disclosure document or contract?

Ronda Goldfein: The threat and fear of HIV criminalization is real. We have seen people all over the country be punished for having sex while positive. These disclosure contracts are a way to try to reduce the risk of prosecution.

JD: What are the essential ingredients of a disclosure contract that would best protect people with HIV against criminalization charges?

RG: A contract should include a clear easy-to-understand statement that one party is disclosing that they are living with HIV and that the other party acknowledges the disclosure and is voluntarily agreeing to engage in sexual activity. Unfortunately, a contract may not be enough. The fact that a person disclosed his or her HIV status before engaging in sexual activity may not be a defense in some states. The best protection is to know the law in your state.

Related: As a Woman With HIV, I Make My Sex Partners Sign a Disclosure Contract: Here's Why

JD: What are the ways people should use these contracts? For example, is it necessary to have a "time stamp" for when it was signed, and what are ways of doing that? What else?

RG: Depending on how creative a person wants to be, the ways to document when the contract was signed are endless. Including the date after your signature and your partner's is probably sufficient to prove that you disclosed and that the sexual activity that followed was consensual.

JD: What else should people with HIV consider when seeking to protect themselves from HIV criminalization charges?

RG: First, know the law in your state. Document in any way you can that you have disclosed your status. In addition to contracts, people have relied on text messages, emails, witness statement, etc., to prove they disclosed. And, finally, find a group in your area working on HIV criminalization and offer to help in any way that you can.

This interview was conducted via email and is lightly edited for clarity.