Mark S. King

Sex while HIV Positive: The New Criminals

Filed By Mark S. King | September 09, 2010 4:00 PM | comments

Filed in: Living
Tags: HIV criminalization

Right now, an HIV positive man is in a Texas prison, serving a 35 year sentence for spitting JailHands.jpgon someone. In Michigan, an HIV positive man was charged for not disclosing his status under a bio-terrorism statute. 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.

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 status 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 telling you I'm positive, right?

At the 2010 Gay Men's Health Summit, I spoke with POZ Magazine founder Sean Strub about criminalization. Sean is the force behind the Positive Justice Project, which advocates against HIV criminalization, and he does a terrific job explaining the harm to public health created by criminalization laws.

(Watch video interview with Sean Strub after the jump.)

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 Should they be repealed?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!

(For more coverage of the Gay Men's Health Summit, visit my blog, "My Fabulous Disease.")


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I think we can all agree that maliciously infecting someone with an incurable, terminal disease is unquestionably an act of murder, and maliciously exposing someone to that same disease without actually infecting them is unquestionably an act of attempted murder.

The real question is, "Is there any such thing as knowingly but non-maliciously infecting or exposing someone?" I would argue that there is not -- one does not "accidentally" have consensual sex with another person without having any opportunity to inform the partner of HIV status. While it is understandable for people to be reluctant to reveal that they have an STD, the legal and ethical principle of informed consent absolutely dictates that any partner must be made fully aware of the risks.

Ah, but what "risks" are you speaking of, Desiree? Must I disclose private medical information to you because, for instance, you are too ignorant to know that oral sex carries virtually no risk of HIV infection? If my viral load is undetectable and, as studies prove, my ability to infect you is zilch, do I still disclose because you are not informed? And finally, if I know we will only engage in protected sex without the exchange of bodily fluids, why is my status any of your business?

And under what circumstances? Are we dating? Are we drunk and in the backseat after having just met? Are we in the dark at a sex club?

Too many of us are stuck in a mindset that a) HIV risk scenarios haven't changed in a generation, and b) HIV positive people are lethal weapons who should be tattooed or otherwise identified to the rest of us. This thinking is tiresome and so 80's. Open your mind, please.

Sorry, that was strongly worded. May I please add that I support, encourage even, disclosure. I believe that the surest way for safer sex to happen is when partners disclose their status. I do not believe, however, that not disclosing is a criminal offense in most circumstances, as outlined above.

Must I disclose private medical information to you because, for instance, you are too ignorant to know that oral sex carries virtually no risk of HIV infection?

Ignorant? The only ignorant person here appears to be you.

The idea that oral sex carries virtually no risk of HIV infection is a dangerous myth -- there are documented cases of HIV transmission via all forms of oral sex. The only "myth" is getting HIV by making out -- there aren't any cases of HIV transmission by saliva-only contact, although there have been cases of infection by blood in saliva.

If my viral load is undetectable and, as studies prove, my ability to infect you is zilch, do I still disclose because you are not informed? And finally, if I know we will only engage in protected sex without the exchange of bodily fluids, why is my status any of your business?

Because you do not have the right to play Russian Roulette with the life and health of another person. If it's my life on the line, you do not have the right to unilaterally decide that the risk is negligible -- that's rightfully my call.

Bob Schneider | September 22, 2010 10:04 AM

By the way, Desiree, the basic point that you fail to realize at this point is that this virus - while still incurable - is NO LONGER TERMINAL. If you knew anything beyond the old 80's way of thinking - and you clearly do not, then you would know that, with the medical technology/medical treatments available today - such as the ones on which I am currently - this is a treatable, maintainable medical condition that is really no different than diabetes and high blood pressure. Those of us fighting this - and it is in fact a fight that we have on a 24/7 basis - know full well that, as long as we keep up with our meds responsibly, we will most likely die from something that is NON-HIV-related. Do some research of your own if you don't believe me on this point.

Therefore, your assertions that "maliciously infecting someone with an incurable, terminal disease is unquestionably an act of murder, and maliciously exposing someone to that same disease without actually infecting them is unquestionably an act of attempted murder" and "you do not have the right to play Russian Roulette with the life and health of another person" - while true - no longer applies to HIV. Plus, it is true that oral sex carries virtually no risk of HIV transmission; unless, of course, you have an open sore in your mouth while engaging in oral sex with an infected partner. In that case, you would be just as irresponsible for engaging in sexual activity as your infected partner would be.

I strongly suggest you do more research today on the HIV virus that we know today, and not what we knew in the '80's. Peace.

EscherEnigma | September 9, 2010 4:31 PM

Eh. The question of should people disclose is an easy one. If you're knowingly putting someone at risk, they deserve to know.

But should it be illegal? Well, that depends. Are we going with the "laws are there to enforce morality" or "laws are there to promote safety"? Because if it's the latter... these laws don't seem to help, they seem to make things worse. So whether or not the person is an evil-hearted jerk, if it saves more people in the long-run to decriminalize un-informed sex for HIV-positive people, then that's the tack I think we should take.

Sure, it doesn't feel as good in the warm-fuzzy part of your brain, it seems that people should be punished for being reckless with other people's health, but if it saves lives in the long-run...

Then again, if you don't think the law is there to save lives, but to enforce morality, then screw whether it makes the world better, those bastards need to be punished.

It all depends on what you feel the role of law is.

I think we can all agree that maliciously infecting someone with an incurable, terminal disease is unquestionably an act of murder, and maliciously exposing someone to that same disease without actually infecting them is unquestionably an act of attempted murder.

I think the line you're looking for is between "knowingly" and "intentionally," referring to murder, not exposure. I absolutely agree that if someone who's HIV positive tops someone and lies about his status with the express motive of killing the other person through HIV-transmission, then yeah, that should be considered attempted murder.

Since I've never heard of such a case, I think these laws are generally going after people whose actions were less culpable than "knowingly" or "intentionally" and were all the way down at "recklessly" or perhaps even "negligently." Which is why they have to make a new law - murder can't be proven in these cases. Instead, it's someone looking for love and going about it in an unethical way.

Should all ethical obligations be legal ones as well? I'd rather the law stick to solving problems it can solve instead of ethics itself, and, as Todd Heywood previously posted on Bilerico, these laws have a poor track record.

http://www.bilerico.com/2008/09/hiv_disclosure_laws_are_a_failure_not_on.php

It takes two people to transmit HIV and a community to make it a public health problem. There are better solutions.

Desiree,
Yes, it's your choice to protect yourself by engaging in sexual behaviors of which you are certain pose an acceptable level of risk (no risk?) to you.

The fact remains that many HIV+ people do not know their status, or who are in 'willful denial' of their probable status to AVOID disclosing and/or dealing with any sexual repercussions. Any sex you engage in with your own body is ultimately, at your own risk...unfortunately, it is foolhardy to expect others to have 100% willingness to always disclose, and or expect people to always know their real status...that's just not the real world...

Based on the tone of your posts, you'd be well advised to protect yourself comprehensively at all times in sexual encounters, and then you'll have little to worry about.

Yes, open disclosure and honest communication of status absolutely should be encouraged, but it's clear that agressively criminalizing HIV+ sexual expression does not assist this in happening...in fact, it does just the opposite...drives people into 'the closet' about their status, and creates AIDS panic and phobias like the case where the man is in jail for spitting (?!!?)

Wolfgang E. B. Wolfgang E. B. | September 10, 2010 4:35 AM

Maybe we should make it illegal to infect another person with HIV (or any other serious STD), whether knowingly or not. Not knowing one's status wouldn't be an excuse. Maybe that would encourage people to take testing a little more seriously.

Of course, such a law would need to be accompanied by free, well-advertised, and highly available testing.

...not to mention that quite a few are being infected while mentally impaired with drugs and/or alcohol. Disclosure's the last thing on anyone's mind when they're high on crystal meth- but that's a whole other column...

Sean is one of my heroes, as is good friend Todd Heywood from Michigan who has done a lot of good work calling our attention to the Michigan case.

Thanks for helping get even more attention on this--it should be shocking to everyone that these cases exist. Especially since this involves incidences where there was no risk of transmission.

ugh! Why? I always avoid reading HIV/AIDS posts because the reactions are so depressing.

It takes two people to transmit a virus as Alex Blaze said. If you are having unprotected sex you should be doing so with the knowledge that you could catch an STI from a partner who may or may not know that they have it. You could be infecting them. HIV tests have a 3 month window period before there are detectable antibodies, I could get a test that declares me negative today and infect someone tomorrow.

And if someone is poz and they don't disclose - it doesn't make them a monster. Maybe they assumed you were poz as well, a reasonable assumption to make in certain communities if someone doesn't take steps to have protected sex. Maybe the sex act you are doing is low to no risk. In 1.7 million cases of HIV in the US, 30 have been traced to oral sex - all cases where dental surgery or wounds in the mouth were present.

The information that people get told about HIV these days is so muddled. How can you call someone a 'murderer' when upon getting their results released they get told that HIV is a chronic liveable condition like diabetes? When ads for HIV meds show extremely healthy and happy people? When HIV means a very different thing these days in terms of health than it used to.

This total disclosure policy is obviously not about protecting peoples health it's about keeping the myth of the AIDS boogey man alive.

And make transmission of all STI's illegal? How about HPV with an 80% prevalence in the population? Gonnorhea and Chlamydia are about the same severity as a cold. If I go out with a flu virus and make out with a bunch of people should I go to jail as reparations to the loss of the workforce?

What if you were positive? Would you still think in such black and white ways?

I'm glad you're still reading the HIV posts, Cyd. People have got to weigh in on issues like this one and I appreciate hearing from you.

Bob Schneider | September 22, 2010 8:52 AM

This is my very first day on these pages, and I am so strongly moved by the discussion at hand that I have decided to register onto this site and lend my own voice to it.

First of all, Mark, please let me thank you for bringing this issue into such stark light. It needs to be assiduously and thoroughly discussed, discussed and...(wait for it!)...discussed. Obviously, as Cyd has already mentioned, there is no easy, 'one-size-fits-all' black-and-white way of looking at this, as it does involve so many ethical as well as legal considerations.

I'm not going to turn this into a mini-book of how I feel about this issue, because, at this point, I am not quite sure exactly how I feel about it. I am not new to the Gay World; however, I am new when it comes to having HIV. As one who was Out-And-Proud as an HIV-negative gay man for over 15 years, who both ended 2009 AND began 2010 as an HIV-negative gay man, who never thought that he would get this, who knew that he was not always safe, but thought that he was 'safe enough' to NOT get it, and who received the news of his HIV infection on March 9th of this year, I know that I am playing in a whole new ballpark now...so to speak...and am frankly overwhelmed at times by the ramifications of living with this still-scary virus.

I will openly admit that I had thought I knew a lot about HIV when I was still negative. I used to have very black-and-white thinking myself; indeed, much like Desiree, the original poster, does now. And when I became positive, I wanted so much to find out Who Gave This To Me. I was angry at the one from whom I believed I got it. (For the record, I still do not know 100% for a fact from whom I got this insiduous virus, and I have already accepted the strong probability that I will most likely never know who transmitted it to me. However, I do have my strong suspicions...) Yes, at the very beginning, thoughts of revenge consumed my mind. But those thoughts gave way to the realization that my true, one-and-only fight was NOT with the one who gave me the virus; but rather, with the virus itself.

Right now, I will say that I know so much more about HIV than I did, which is to say that I know enough now to have an idea of how much of it I didn't know before I got this virus, not to mention how much more about it I still don't know! As I continue on my still-brand-new journey, I look forward to continuously adding more and more to my knowledge base. And still have a good time in the process! (While - of course - informing beforehand all of my sexual partners of my status, as I have already been doing.)

One thing I can say for sure, especially in response to Desiree's rather arrogant attitude, is that the immortal words of Billy Joel certainly apply here: "Shades of Gray are the colors I find/When I look to the enemy line/Black and White were so easy for me/But Shades of Gray are the colors I see."

Thank you again, brother Mark, for raising and illuminating what is such an important discussion for us living with the additional stigma of being POZ. Like you probably did, I also grew up in the "AIDS 80's." Like many people, I quickly developed a stigma regarding HIV/AIDS and those who got it. Of course, the stigma developed because I was scared to death of it - so scared, as a matter of fact - that it delayed my coming out of the closet by many years. Eventually, I had to deal with the immutable fact of my sexuality. Unfortunately for me, I now am forced to deal face-to-face with my own stigma of how I feel about this condition: Because I now have this virus, the stigma I have always had about it has now reflexed back onto myself, causing me to stigmatize myself for having gotten it. You don't know (or maybe you do, from your own experience), how many times I have beaten myself up over having gotten this. I am now on a combination of anti-anxiety and anti-depression meds - in addition to my HIV meds - which do a world of good in helping me deal with my condition.

Anyway, this has now become the mini-book that I was afraid that I was going to write. One thing's for sure, though: The questions I have about this subject still far outnumber any answers I could ever have. I'll be listening!