Alex Blaze

Man prosecuted for HIV non-disclosure

Filed By Alex Blaze | September 08, 2008 3:00 PM | comments

Filed in: Living, Politics
Tags: HIV/AIDS, incarceration, nondisclosure, prevention, seroconverting, status disclosure, treatment

Another poz man was prosecuted for non-disclosure (name redacted because there's nothing productive in parading the names and mugshots of people prosecuted for sex crimes around for everyone to see):

A gay, 23-year-old man received a suspended 45-day jail sentence, 30 months of probation and a $300 fine, plus court costs, after pleading guilty Aug. 22 to charges stemming from violations of North Carolina's public health laws relating to the spread of HIV.

******, a DJ at clubs in Raleigh and Wilmington, was accused of failing to use a condom and failure to notify sexual partners of his HIV-positive status.

And what good does this prosecution do? If he keeps it up and gets sent to prison (where, by the way, condoms are illegal), will that help anyone?

The Q-Notes article discusses state law:

When someone in North Carolina is diagnosed with HIV, he or she is required to provide the local health department with the names of those with whom they have had sexual contact. They are also given an agreement to sign that says they will practice safe sex and inform any future sexual partners of their HIV-positive status.

It's illegal under the Constitution to force someone to disclose medical information, so I suppose that's why the contract is in place. We've seen this before; often when the state wants to violate someone's Constitutional rights they simply force them to sign a consent form to that effect. I don't see a material difference between being forced to sign a consent form waiving one's rights and having those rights violated, but if no one cares, I suppose it'll keep on happening.

But what these prosecutions actually do is lull people into a false sense of security (i.e., he has to disclose, but he didn't, therefore he's negative). Even though 250,000 Americans, it is estimated, have HIV but don't know it, there are still some people who assume that their partner will disclose.

Whether or not an HIV positive person has a "moral obligation" to disclose isn't the issue here. Laws that attempt to create a sexual morality simply don't work (was there no gay sex going on in states with sodomy laws before Lawrence?). And if we want people to be more open with information, threatening to throw them in jail won't help any.

Whether or not everyone disclosed their status before sex, the disease would still spread. People don't always know that they have it, safer sex fails sometimes, and some people are willing to take big risks with their health. Positive solutions to this problem would focus on providing treatment, testing, and research instead of prosecution.

Pointing the finger at someone who passed the virus along to someone else may make someone diagnosed feel a bit better, but it doesn't do anything to prevent another infection and doesn't do anything to make going and getting tested any easier (anxiety around testing is a big problem in HIV prevention).

But that's not going to happen any time soon. We live in a culture where, if we don't like something, we make it illegal and prosecute, whether it helps or not. And until we get past that mentality, I don't see our government taking a substantial, effective, coherent, and non-stigmatizing approach to fighting this disease.


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I would expect prosecution of a person for knowingly spreading HIV to an unsuspecting individual as murder or some similar heavy charge would lower the amount of spreading HIV due to ignorance of a person's HIV status.

Furthermore, the Lawrence scenario is completely different from this one. Sodomy laws required discovery, that the involved parties would be caught in the act. Neither party would have an interest in putting itself up for prosecution, so avoiding the consequences were easier. In the case of HIV infection, if the carrier didn't disclose, the infected individual will likely seek vindication. Thus, in one scenario, none of the parties expect retaliation, giving little incentive to avoid the act. In the other, you are aware that you're putting your life/liberty in the hands of someone's emotional reaction.

Going further into the scenario of deceit: Why is it unthinkable that a person who knowingly infected you with a disease that has no cure and is a permanent handicap in your lifestyle cannot be made to pay for it? We often punish selfish acts that harm others. Of course, the issue at hand is how you idealize the "justice" system. On the one hand you have a system for vindication, which is what it has been so far; and, on the other side, you have an ideal of the system as a rehabilitative one.

As for the failures: Protection can always fails...what's the ratio? The people who don't know they don't have HIV...why don't they know it? Those who take risks with their health will likely not press charges; and if they do, the argument that it was consensual can be made.

Finally, why is education mutually exclusive with punishment for deceitful spread?

P.S. Constitutional rights are constantly invalidated whenever a person's safety is at risk. Right to life, right to liberty, right to property; those are constantly removed under certain circumstances.

Regarding HIV spread in the prison system, I don't think that will be a moving argument. Until we get to a point where people start caring about the welfare of prisoner's, that point of view won't have much effect. Our society, for better or for worse, values convicts and non-convicts differently.

I disagree with the amount of danger you're ascribing to this situation, Lucrece. A lot of these people are prosecuted for jacking off with someone, which has no risk of transmitting the disease. I've read about a trial in a Poz magazine article where the judge didn't even allow the jury to hear who had topped and who had bottomed, even though the risk of transmission is far greater when the poz guy is topping.

Constitutional rights are constantly invalidated whenever a person's safety is at risk.

I disagree here as well. We have lots of laws that allow for some danger in order to allow for some freedom. It's a balancing act - we don't just let the president do whatever in the name of national security... oh, wait. Well, we shouldn't.

But I think we're just thinking about these situations differently. I think you're approaching this thinking that positive people go around thinking "I wonder who I can infect... gee, he looks like a great person to kill!" And I'm thinking that the decision not to disclose is more complicated and involves thinking about the risks that surround disclosure.

And young people aren't stupid and impressionable. Some of the best safer sex practitioners I've ever had the pleasure of meeting were young.

Wolfgang E. B. | September 8, 2008 5:05 PM

I agree with you, Lucrece. Knowingly spreading a deadly contagion is, at best, negligent homicide; at worst, first degree murder. I have the deepest sympathy for anyone who is HIV positive, no matter how they got it, but it comes with a responsibility to protect the safety of others.

I do hope this law applies to *all* serious communicable diseases though, not just HIV. I've never heard anything but AIDS mentioned when it's brought up.

This has nothing to do with "Knowingly spreading a deadly contagion," as whether the positive person used a condom or not can often be immaterial under these laws, or whether anyone got infected or not.

Wolfgang E. B. | September 9, 2008 2:42 PM

Condoms sometimes break. I'm talking about failure to tell a potential sex partner about one's known HIV (or other pathogen) positive status. If a person doesn't know his or her health status, that's a whole other issue. Certainly, we all have a responsibility to protect ourselves, but that doesn't excuse the person who knows he or she has a disease and fails to tell a potential sex partner about it, whether that person becomes infected or not.

Ideally, we also have a responsibility to know our own health status. If I were a doctor, I would insist that all my patients be tested for all major transmittable diseases regularly. I understand the fear of getting tested, but failure to do so puts not only others at risk, but oneself as well. The disease has to be caught so treatment can begin as early as possible.

Of course, I understand that not everyone has access to regular medical care. That's yet another issue.

Singling out LGBT people is a problem that definitely needs to be addressed. Straight people are getting and transmitting these diseases as well, and some of them are more prevalent among straights.

Lucrece said "I would expect prosecution of a person for knowingly spreading HIV to an unsuspecting individual as murder or some similar heavy charge would lower the amount of spreading HIV due to ignorance of a person's HIV status."

I believe Lucrece is wrong. Maybe public "caining" would work, but I don't advocate that either.

One must take personal responsibility for their sexual behavior. Gay men today should just assume everyone is positive and take the necessary precautions. Other men and women who are promiscuous should take precautions as well.

Prosecution and persecution of HIV people accomplishes nothing helpful. Everyone who has sex should be encouraged to get tested on a regular basis. Everyone who has sex should take precautions. Knowing your partner and his or her background and current and past sexual practices should not be off limits for direct questioning when you have intimate experiences. When you don't know absolutely your partner's status, you practice safe sex. I think that means that 99.99% of the time you must practice safe sex.

Regarding Wolfgang E.B.'s and others' concerns, from the Q-Notes article:

"According to Raleigh’s News & Observer only 16 people in 2007 were convicted of violating the communicable disease law. Rather than HIV, many of the instances were related to diseases such as tuberculosis or hepatitis."

"It's illegal under the Constitution to force someone to disclose medical information."

Really? Got a cite for that? I assume you are talking about the Federal Constitution. If this were true, we wouldn't need all of the laws like HIPPA and the Patient's Bill of Rights.

I think that in the case of contagious diseases, the need for the safety and security of the whole would force individual rights to the back. I don't agree that this case meets those standards, but do agree with laws that seek to punish those that intentionally and recklessly seek to transmit HIV, either through the blood supply or via rape.

HIPPA and the patient's bill of rights? Well, that's a start. Why do they get thrown out the window just because of AIDS panic?

Sure, there are certain protections around release of medical records...but there is no absolute Constitutional right to keep our personal medical status undisclosed. U.S. law -- and international law too -- has to deal with this thorny issue. The privacy right of individuals have to be balanced with the right of the rest of us to be protected from someone's serious contagious disease.

TB tests are mandatory for many jobs, like healthcare professionals, teachers in public schools, department of corrections, etc. Foreign students must be screened for TB to register at U.S. schools. Likewise, HIV tests are mandatory in certain situations -- for military and State Department personnel, as well as inmates in some states.

Many Americans accept the need for testing in at least some situations because they understand the real human problem here, which is this: when it comes to sexually transmitted diseases, some people will lie about their status if disclosure is left up to them. They will lie to a one-night stand...and they will even lie to a devoted spouse or partner of many years. Most people accept the principle that no individual has the right to stealth their personal public-health threat into any intimate relationship situation. So the knowing transmission of HIV is illegal in most states. A list of laws is available at The Body http://www.thebody.com/content/art6936.html.

Personally I agree with Alex that it's wrong of state law to single out persons with HIV for this kind of prosecution. This amounts to stigmatizing HIV, and by extension, to stigmatizing LGBT people.

On the other hand, many states don't go far enough, in my opinion. Knowing transmission of ANY sexually transmitted disease should be illegal -- especially for those individuals who leave dozens or hundreds of knowing infections in their wake. If ALL the STDs were criminalized, it would take the stigma spotlight off HIV overnight! Syphilis, HPV, herpes, hep B, even chlamydia -- nobody has any right to knowingly spread these around. All can have catastrophic effects on other people's lives, especially if they go untreated.

Recognizing this fact, a growing number of states have started to criminalize all knowing transmission of STDs, not just HIV.

We ought to put ourselves in the shoes of the unsuspecting person who was knowingly exposed to any STD by some uncaring trick, or even by somebody with whom they were in a trusting long-term relationship. Personally, if anybody knowingly did this to me or a member of my family, I would want law enforcement to throw the book at them.

Alex asks the $64 question, which is -- how CAN we protect ourselves?

In the LGBT world, the mistake we're making is that we put the onus on the other party, expecting him or her to voluntarily disclose a poz status. Unfortunately, as we all know, the other party often lies. So the potential victim is the one who has the greatest power to set protection parameters for herself or himself.
To be truly effective, those parameters have to go beyond condoms.

"Prevention" ought to include encouraging our people not to have that first sex fling until both parties exchange lab reports on a panel of HIV and STD tests. This is not very romantic, but it would sure work in many cases. If you resist the temptation to have a quickie in the alley behind the club and respectfully insist on the tests, and that oh-so-alluring other party declines to be tested, then you will know that having sex with this person will probably equal putting your foot on a land mine.

If even 25 percent of our sexually active LGBT citizens protected themselves in this way, we'd dramatically cut the national and state infection stats on HIV, as well as stats for other diseases where LGBT people are being tracked, like syphilis.

But this is precisely where our "community" falls down on the issue. So far, in spite of 30 years of discussion about AIDS, it's still not socially or ideologically acceptable to advocate setting the prevention bar that high. "No test, no sex" would get in the way of some people having their impromptu good time. So we've settled for the so-called "prevention campaigns" that only go halfway.

It's sad to see this 23-year-old North Carolinan in so much trouble. But I'm glad that no friend or family of mine was among his victims. This was not a guy who made a one-time slip. His offenses extended over nearly two years. And he's lucky --in North Carolina, it's a misdemeanor, not a felony, so he's not going to prison. Instead he is being given a chance to change his behaviour and his attitude. According to the news reports I read, he will get 30 months of supervised probation, and has to agree to no sexual contact with anybody.

I hope he gets the message on what his prosecution was about. If he screws up and violates the agreement, the news reports say that he will get two years of quarantine.

I live in Raleigh, NC and heard about this asshole long before the law got involved. Like a year. I've heard he hooked up with people who were younger and/or more vulnerable, meaning they might forgo condoms. He's a pretty hot guy too, so that made it that much easier. And even though the news reaches a wider audience, his picture had been posted on craigslist and other forums by users who knew about it.

I think people should be adamant about having safe sex, and take the matter seriously. But that doesn't let opportunists like him off the hook.

I know for a fact that one of his victims was seriously contemplating shooting him if the law didn't move in soon, so he should be VERY thankful that he was prosecuted.

As the editor of Q-Notes and the writer who penned the piece on Weaver, I have not taken up a personal or public opinion on the matter... not yet anyway. In the future, I might put together an opinion on the subject for one of my editorials.

In the meantime, Weaver did manage to contact Q-Notes after he saw our story. It is my intention to speak to him and get his side of the story -- something we attempted to do by contacting his attorney and trying like hell to find contact information for him BEFORE we sent the story to press.

In this conversation, please keep in mind the following facts and information:

1. Everything reported by Q-Notes occurred in open court; therefore it is public record.
2. Q-Notes did due diligence in attempting to contact Weaver and his attorney, who hung up on us immediately after saying "No Comment," hastily and, in fact, quite rudely.
3. Because I could not get comment from Weaver or his attorney, I turned to Jacquelyn Clymore, the executive director of the Alliance of AIDS Services-Carolina, who I believe gave a balanced and thoughtful response to a very delicate issue.
4. North Carolina DOES NOT SINGLE OUT HIV. The health codes and statutes applying to HIV also apply to other communicable diseases such as tuberculosis and hepatitis.
5. Those state laws were only used to convict 16 people of violations under those statutes, the majority of which were not related to HIV.
6. We do not know the alleged victims in this case and do not know of their HIV statuses.
7. Weaver pleaded guilty to these charges and today confirmed with me for a story done for Sirius OutQ News that he did, indeed, fail to notify his three alleged victims of his HIV status.
8. I will attempt to have a completed interview with Weaver done in time for our Sept. 20 issue, which goes to press this Sunday evening, Sept. 14. If my publisher allows, I will post the story online prior to the print issue's street date.
9. I and the other members of the Q-Notes staff are well aware of the delicacy of this issue and the various ethical dilemmas of printing this story, along with the defendant's name and public-record photograph. We proceeded with this story in this most delicate and non-biased way as we possibly could. In response to readers who have already criticized our choice to run the story, we have simply responded by reminding them that we are a newspaper, not a cheerleader, and it is our responsibility to report the news, backed up with facts and our best good faith efforts to present all sides of the issues.
10. Please take the time to read a guest commentary that was published in the same issue as this story, entitled: "HIV Disclosure & Prevention: Stop legislating, start listening," located at http://www.q-notes.com/2008/09/06/hiv-disclosure-prevention-stop-legislating-start-listening/

Thank you,

Matt Comer
Editor, Q-Notes
editor@q-notes.com

Thanks for that Matt. Will you keep us updated? I'd be happy to let you guest post about it.

Good job on the article, btw.

Alex, thanks for this important analysis, although I'm scared by some of the comments.

I agree, Mattilda. This is one of the most sex-phobic and irresponsible threads I've seen on this site in a while. I don't like the fact that people are implicitly saying that having sex has little-to-no value, so lying about HIV status must be, first and foremost, about getting others infected. To put it in rightspeak, we simply don't agree that there's any right to intimacy or sex for people who are positive, or maybe anyone at all. It's interesting that the readers of an LGBTQ blog would come to that conclusion.

Also, I'm pretty annoyed by the utter infantilization of the "victims" here. A couple mentions of how they're "young" and "vulnerable," as if these people (besides Antonio and Matt) know the ages of the negative people this person had sex with, and that they have no responsibility to protect themselves. That's simply not true, and they need to be thinking about their own health, no excuses like the "predator" looking to infect them.

But I'll agree that the neg men he had sex with were probably young - the man prosecuted here was 23 himself! Why isn't anyone else saying that he was young and rash... oh, wait, he's a monster looking to infect others.

But the question remains: what can we do to prevent situations like this? People here seem to be just fine with throwing him in prison, which will do nothing to actually stop the spread of the disease. But I guess throwing people in prison makes those who aren't feel safer.

Some of the comments scare me too, "Mattilda" ;).

Improper use of quotation marks scare me the most, "Lucrece!" ;)

Your rights end where mine begin. The government's job is to protect me from threats both foreign and domestic. Transmittable diseases (especially incurable ones) are definitely a threat.

This isn't aimed at HIV+ people. It covers all communicable diseases including hepatitus, TB and others. While they all might have different standards of care on how not to transmit the disease, I find that reasonable since they all spread differently due to being, well, different diseases.

The government is simply out to protect the public. I have no problem with that.

But, yeah, if he's got no compunction about spreading HIV randomly by choosing sex partners who are young and impressionable and he can gloss over/lie about his status so he can have bareback sex? Put him in prison. Worried about him infecting others in the jail? Solitary confinement. It may sound harsh, but he's obviously a person with a problem if he's willing to harm others.

Just because he used his penis instead of a gun and it will take his victims a lot longer to die, doesn't mean he's any less of a criminal.

Just because he used his penis instead of a gun and it will take his victims a lot longer to die, doesn't mean he's any less of a criminal.

Well, it should. Jacking off with someone who's positive (which is prosecuted in several states) has a far, far, far, far less chance of getting someone infected than shooting someone with a gun. Even having anal/vaginal intercourse has a much smaller chance of transmitting the disease than shooting someone with a gun. They're completely different situations.

The government is simply out to protect the public. I have no problem with that.

How many times has GWB used that line? How many times to cops who pull over black people in predominantly white neighborhoods use that line? How many times is that used to deny LGBT people jobs in teaching and the military?

I'm not denying that the government doesn't ever do anything that would protect people, but putting an HIV positive person in a condom-free environment where sex is likely to be forced doesn't seem like a good idea to me.

I am shocked to see that the majority of people on here are taking the side of the prosecuted in this instance.

Now turn that around and imagine being the victim. How would you feel if in your casual encounter you later found out that the other party failed to mention the fact that he/she was HIV positive?

It's not that difficult for me to imagine, because I was recently put in this situation.

I am currently in the process of filing criminal transmission charges against my ex of over two years. He lied and told me he was negative, while in fact, has known he was HIV positive since before we got together.

It is sad to me when discussing this with my attorney and the district attorney, who says its a clear cut case, says, "it would be more valuable to you, to pursue him civilly." I don't care about the money, I just don't want him to infect someone else with HIV.

So to those that are taking the side of the prosecuted, just imagine being the victim for once.

Bil, dear, get your grammar straight; the quotation marks do not need to encase. This like "judgement" and "judgment", are variable.

Ethnocentrism can be pretty scary, too!

I need to get mine straight, by the way. Insert a comma after "This", lest I terrorize you into a heart attack.

Brilliantly put. I work for an agency that provides services for people living with HIV. I also teach an HIV 101 course for high risk populations. I am always amazed at the number of people in every class that still tries to put their own safety in the hands of their partner whether its sexuaul or needle sharing. They give up their own power and then blame everyone else for the results.

The subject of prison has come up a couple of times in this thread. U.S. correctional authorities are finally waking up to the problem of STDs, including HIV, being spread in prison by the rampant sex going on there, especially in men's prisons -- some of it violent and coercive, some of it not. They're beginning to be aware that prison sex is now part of the transmission loop into the civilian world, and realize that they have a responsibility there.

This is something I've written about quite a bit in my A & U column. Prison sex is illegal, of course, and authorities refuse to distribute condoms. In some prisons, their way of dealing with the problem is to HIV-test inmates on arrival, and the HIV+ inmates are housed in a separate tank. This way they try to prevent cross-infection with neg inmates.

But that leaves the problem of all the other STDs that can be transmitted. So they're starting to give attention to hep B, HPV, etc. Sexually transmitted MRSA (antibiotics-resistant staph) is becoming a huge problem, too. Like all the others, it can be carried back into the outside world by the person who has it.

John R. Selig | September 9, 2008 2:00 PM

I find this post and the many comments interesting.

Let's all step away from the legal aspects of this for a moment and take a step back and examine the ethical side of the situation in a way that our mothers and fathers tried to teach us from the time we were very young. It is called taking responsibility for ones own actions.

There are two parts to thi situation. First and foremost anybody that is knowingly HIV+ and has unsafe sex with somebody else without telling them that they are HIV+ is knowingly causing great harm to another human being. That is morally wrong and nothing short of being scum in my opinion. Now there are plenty of people out there in committed relationships with mixed HIV status who take the necessary steps to minimize the chance of exposure. There are also people that purposefully have unsafe sex with HIV+ partners which I think is nuts but that is a different discussion. But anybody who knows they are positive and doesn't tell their sex partners is a person that I have great disdain for and those that have risky sex are especially evil in my mind.

The person having unsafe sex with an HIV+ partner must also take responsibility for their behavior. Anybody having sex with a trick or even a partner that isn't definite about their partner's status should always assume that their sex partner is HIV+ and act accordingly. I know, most sex is not 100% safe but at least one can minimize their chances of becoming positive. I have friends who have been together for 13 years where one is positive and the other remains negative.

Now let's talk the law here. If a person knowingly hurts another person then they should be held responsible for their behavior if they withhold information from the person who is being hurt. I don't believe that the mere infection should be against the law. The HIV+ positive sex partner knowingly withholding their status should make the case have legs. For those that disagree with this let's look a a totally different ethical situation.

A number of years ago the Ford Motor Company sold automobiles (I believe this case involved Pintos sold in the 1970s) that when hit from behind under certain circumstances would cause the Pinto's gas tanks to explode killing the people in the car. Ford knew about the problem but chose not to fix it (or tell the public about it) figuring that it would be cheaper to settle any lawsuits that came from such an accident than to fix the problem. When the public found out about this they were outraged. Should the Ford Motor Company been taken to court? Please explain to me how an HIV+ person that has unsafe sex with a partner without telling them is different from Ford and its exploding Pintos?

Regardless of ones view of the legal situation here, I am shocked to see those upset about the legality of the situation without comments being made about the highly unethical and immoral behavior of the HIV+ partner in not disclosing his status.

"Jacking off with someone who's positive (which is prosecuted in several states)"

Citation, please? Or is this just a typical rhetorical exaggeration?

"Jacking off with someone who's positive (which is prosecuted in several states) has a far, far, far, far less chance of getting someone infected than shooting someone with a gun. Even having anal/vaginal intercourse has a much smaller chance of transmitting the disease than shooting someone with a gun. They're completely different situations."

Well, that is a nice false analogy. By your example, we should give credit to the murderer who uses a knife or some weapon that would make the person bleed out slower. It is not the choice of deadly weapon-it is the fact the deadly weapon is used at all in a manner that could cause death that creates the problem.

I find it interesting that those who take offense at this law being enforced cannot do so without trotting out the parade of horribles, or try insinutate the government is seeking to deny positive people sexual intimacy.

Here's a thought-if you want to screw someone, be honest with them first. If you are, they have nothing to complain about under the criminal defense of consent. There are plenty of positive people to have sex with, and there are plenty of people who will risk infection.

But that gets in the way of getting off. Fuck the betterment of society, Weaver needs to have bareback sex!