One of the arguments people who support HIV disclosure laws generally make in their defense of such legislation is to think about the "victim" - the person who consensually had unprotected sex with someone whose serostatus they didn't know, but apparently isn't responsible for his or her actions. Here's a case that shows that those laws don't even require the transmission of HIV to punish someone with 25 years in prison for not disclosing his status:
Rhoades, 34, pleaded guilty to failing to disclose his HIV status prior to having sex with a Cedar Falls man June 26. The two men exchanged messages in an Internet chat room before meeting at the victim's home. Although the contact was consensual, the victim, who has since tested negative for HIV, said Rhoades denied he had any sexually transmitted infections. The charge against Rhoades stands because he failed to disclose his HIV status prior to having sex with the man.[...]
Rhoades said he doesn't remember discussing his HIV status with the victim. He drank heavily and took prescription pills before having sex, a combination that he said clouded his judgment. In addition to HIV, the defendant also was being treated for herpes and genital human papillomavirus at the time of the incident, said assistant county attorney Linda Fangman.
There you have it. The other person says that you didn't disclose, you say you don't remember, and you go to prison for 25 years. Thank God no sex goes on in prison, since we'll finally be able to keep this monster who didn't transmit HIV to someone else under control.
This case demonstrates some of the ridiculousness behind these laws. Get a load of what the judge who sentenced Rhoades to 25 years said:
"Simply because it happens regularly that people don't disclose, doesn't mean it's safe," Harris said. Despite improved treatments, he told Rhoades, contracting human immunodeficiency virus "does change your life, and you more than anyone else should know that."[...]
"One thing that makes this case difficult is that you don't look dangerous; you don't look like most of our criminals that sit here," Harris said. "But the risk is still there, just like if you would have shot a gun."
Just like shooting a gun? Really? I know that in order to push conservative laws we all have to live in a constant state of fear of the hobgoblin-du-jour, but can we bring the rhetoric back down to Earth, judge?
Because the chance of someone who's positive spreading HIV to someone who's neg, if the poz guy is the top and they don't use a condom, is 1 in 50. The chance of killing someone by shooting a gun, though, I'd imagine is much greater.
(And that's assuming that they engaged in the most risky sex they could have. The articles I've found on this haven't specified if they engaged in anal sex, if they did or did not use a condom, or who topped. That's a lot of ifs, and, as others have pointed out before, lots of cases involving HIV nondisclosure laws don't ask that many questions.)
I sincerely doubt these laws make anyone safer. I've yet to see any research supporting the idea that they do, and the preponderance of evidence would seem to be on the side of making people much, much less safe, since all they do is perpetuate the myth of "I'm sure he'd tell me if he had it." Plus prison significantly reduces the lifespan of people put into it for long periods of time, and I'd imagine its life-shortening effects would be amplified for people with HIV.
But this is America, and as the country with 5% of the world's population and 25% of the world's prison population, we obviously don't care all that much about having a good reason to put someone in prison. It makes some people feel safer, and that's reason enough to ruin someone else's life.
Because that's the irony in the judge's comments - aiding someone else in exposing himself to a 2% chance of HIV transmission and the life change that comes with that is enough to give someone a 100% chance of having his life ruined.
I know that I'm in the minority on this one, since even in the LGBTQ community the idea that throwing people in prison will solve all our problems has a lot of traction. So I pose the following questions to those people:
- John Doe, the "victim" in this case, said that his "right to choose whether to be intimate with someone who was HIV positive" was violated in this case. Is 25 years jail time, lifetime parole, registering as a sex offender, and monetary restitution too harsh, too light, or just right for violating John Doe's right to not have sex with people who are HIV-positive (or, more accurately, his right to bareback with people who are HIV-negative)?
- Does John Doe bear any responsibility here for having unprotected sex with someone whose status he didn't know? Rhoades said he was "clean" online, but anyone familiar with internet cruising would know how much weight to place on that.
- Will John Doe and other HIV-negative gay men who hear about this case be less likely or more likely to have unprotected sex with online tricks in the future?
- Does putting an HIV-positive person in prison, where condoms aren't distributed and male-on-male sex is rampant, unduly put others at risk? If the "victim" in this case were someone else in a prison, would Rhoades have received 25 years?
- Should Rhoades's lack of intention to infect John Doe be a mitigating factor in this case? Should the fact that he didn't infect John Doe be a mitigating factor in this case?
- If Rhoades had heard of other poz people being imprisoned for nondisclosure, would that have changed his actions in this case?
Thanks to Dale for emailing me this article.