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Criminalizing Sex

Jill

This is disturbing:

A German musician has been arrested on suspicion of infecting a sexual partner with HIV.

The prosecutor’s office in the western town of Darmstadt said Ms Benaissa had been detained because of the “urgent suspicion” that she slept with three people between 2004 and 2006, without telling them she was HIV-positive.

At least one of the partners then tested positive for HIV, allegedly as a result of having intercourse with her, the office said in a statement.

While some people may find it frightening that a person with HIV or any other infectious disease would have unprotected sex and not disclose their status to their partner, I’m not sure it should be criminal. Many of us might want our partners to disclose their status, but legally requiring that they do? That seems to take us down a pretty dangerous path.

Thanks to Anne for the link.

172 thoughts on Criminalizing Sex

  1. In 2005, a DC man named Sundiata Basir was sentenced to 21 years in prison for purposely infecting multiple women with HIV, including a 15 year old girl. He’d been having unprotected sex for the past ten years and lying about his HIV status.

    I’m sorry, but I have to disagree with you about this being a crime. Purposely attempting to infect someone with a disease that can kill him or her should be considered a criminal act.

  3. I should add that it is not sex that is being criminalized here. When a drunk person gets behind the wheel and is arrested for a DUI, it isn’t driving that’s being criminalized, it is the negligence and disregard for public safety.

  4. I don’t know the specifics of the law, but I’m pretty sure there’s a law in California to that effect– I don’t know that you’d get arrested, per say, but I know you can get sued for knowingly withholding information about being HIV+ if your partner contracts the virus. I think the term was “willful exposure.”

  5. Knowingly exposing an unwitting person to a potentially deadly virus via a needle is clearly a criminal act. Why should this not be the case when the means of transmission is instead sexual contact?

  6. It’s one thing if you tell them and they say “Screw it, I hate condoms and am willing to run the risk.” But isn’t this at the least reckless endangerment? You have an incurable, highly dangerous STD, you know it, and you fail to take even the simplest of measures to prevent transmission to a sex partner you know is unaware of your status.

  7. Having sex with someone intending to infect them with HIV — especially without their consent — is a different story, IMO. And maybe reckless endangerment is the right model. But it does still seem to lead us down a troubling path. Sex comes with risks — we all know that. Should you also be criminalized for, say, battery if you infect someone with a different STD? What if you get someone pregnant when they don’t want to be pregnant?

    Knowingly exposing an unwitting person to a potentially deadly virus via a needle is clearly a criminal act.

    Is it? If a drug addict knows they’re HIV-positive and they share a needle with someone, is that a crime? I’m not being facetious, I actually don’t know.

    As for dealing with these issues in civil court, I’d be more comfortable with that (that’s what it sounds like the California law is, but again, I’m not familiar with it). Criminalizing the conduct — putting someone in jail instead of suing them — seems to me a different matter.

  8. I work at a substance abuse clinic where we maintain strict confidentiality. The only times we would break that confidentiality is when a client is suicidal or homicidal. The question of HIV/AIDs has come up several times and the law for us in regards to confidentiality is the same one that obligates us to warn a person who our client said s/he will kill. For example, if my client says that s/he is going to go home and murder his/her parter i have an obligation to warm his/her partner. Same goes for HIV/AIDs. If a client has HIV/AIDs and plans to intentionally have sex with said parter without revealing HIV status, we have an obligation to warn. I hope this contributes to the discussion here…?

  9. That’s interesting, feministgal. Hmm. Don’t get me wrong, I know these are complex moral, ethical and legal arguments. I’m just very, very uncomfortable for criminalizing failure to disclose a sexual condition.

  10. but i’ve never thought of HIV/AIDs as a “sexual condition.” It’s more a health and safety concern seeing as people can get the virus by blood transfusions, sharing needs, through open cuts, by caring for patients, AND by having unprotected sex.

  11. I have to agree with Blitzgirl who said sex is not being criminalized; it’s the act of exposing someone to a non-curable STI without informed consent.

  12. That’s a fair assessment — it is a public health concern. But it’s also a highly stigmatized condition, and I think that has to weigh into the calculus when we’re discussing whether or not its transmission should be criminalized. I don’t think we criminalize the negligent transmission of other diseases, at least not between laypeople (or maybe we do, I just don’t know about it). I can understand the ethical obligation to inform a third party of a potential HIV infection, as your organization does; I’m not sure I can support criminal sanctions, though, for a person who negligently transmits it.

  13. How would one define negligent homicide? It hangs on intent. In the case of someone who knows they have HIV, in a sense, what they claim their intent is would be irrelevant, however it would certainly rise to negligence as a legal matter, I would presume. If one has unprotected sex, they are exposing someone to a deadly virus as a matter of fact, rendering their intent irrelevant to me, especially if they are know their HIV+ status. Someone driving recklessly may not have the intent to kill, but certainly can, and would be charged for it. Unprotected HIV+ uninformed sex is much worse than reckless driving.

    HIV transmission is different than “negligent” transmission of the flu. In the case of HIV, you are directly injecting the virus into someone with your p*nis. There is no slippery slope here. I think there is a line (a bright line- is this the correct term?) that is very apparent here.

    I would also consider this a feminist issue because of the disparity in risk between a male and female in contracting HIV from intercourse.

  14. “Should you also be criminalized for, say, battery if you infect someone with a different STD? What if you get someone pregnant when they don’t want to be pregnant?”

    I believe there are states where it’s assault/battery if you have an STD, know it, and fail to disclose to a partner.

    As far as getting someone pregnant, I don’t really see why it wouldn’t be if you deliberately lie about your ability to get someone pregnant in order to persuade them to forgo the use of contraceptives. You’re obtaining their consent by presenting false information and thereby placing them at significantly heightened risk of winding up with a life-altering medical condition in need of expensive treatment. I’m pretty sure men have successfully brought suit for fraud against women who lied about being unable to conceive or using HBC and subsequently carried to term. It’d be hard, since you’d need to demonstrate duplicity, but the theory seems sound.

    “I’m just very, very uncomfortable for criminalizing failure to disclose a sexual condition.”

    The devil’s in the details, unfortunately. It’s easy when it’s a perfect storm scenario where someone knows they have something, doesn’t disclose, and does nothing to prevent non-consensual harm to their partners. Further along the spectrum, you have situations where an HIV+ person says “I absolutely told this person, they knew for months before we had sex,” and their partner denies having been told. (I think Alabama ran into that one a few years back.) Or when the positive partner withholds their status but insists on all available precautions. Or when someone honestly doesn’t know, but lies about having recently tested negative. Or, on the end where it’s actually criminalizing sexuality, those wonderful ’90s attempts to make it a felony for HIV+ people to have sex at all.

  15. Another vote for criminalization, on the grounds described by Pinko Punko, et al. If the disease were either curable or non-fatal without treatment, I would probably feel differently.

  16. Under German Law homicide is every act that causes the death of the other person, if the delinquent (1) intended to kill the other person or (2) knew that he would kill the other person or (3) knew that he could possibly kill the other person but didn’t care about it enough to change his plans (in short). Same goes for assault.

    If you are HIV positive, you know that you can kill someone if you have unprotected sex with another person and if don’t even use condoms you obviously doesn’t care enough about the other persons life and health. So, I have no problem to criminalize this as assault or homicide.

    I do, however, have a HUGE problem with the fact that the prosecutor’s office had a press release telling the whole world about Ms. Benaissas HIV-infection. This is, in my opinion a violation of her right to privacy. It would have been absolutely enough to state the reason for her being imprisoned (alleged assault/homicid). She is not even convicted yet, it is just an allegation.

  18. I think blitzgal’s DUI analogy is right on, particularly when you think about injuries caused by a DUI. It’s not a matter of punishing Benaissa for being HIV+, just like it’s not a matter of punishing someone for being drunk, no matter how it may look to that person. Rather, it’s punishing someone for the harmful acts they knowingly committed while being HIV+/drunk, and Benaissa should certainly know as well as anybody can just what it means to be HIV+.

    It’s also worth noting, IMO, that Benaissa was not charged with “passing on HIV” or anything that specifically criminalizes HIV-sex, she was charged with grievous bodily harm. If I’m not mistaken, GBH requires that Benaissa recklessly caused serious injury, physical or otherwise, while being aware of the risk she was taking. I think, from the story we’re given, the facts certainly fit close enough to those criteria to warrant an arrest and trial.

  19. hm. i think it’s generally a bad idea to criminalize people for having a virus/syndrome. perhaps especially because of the proportion of newly infected people who don’t know that they have it.

    did you know that up until july of 2008 people with a known HIV+ status weren’t allowed to cross into the U.S.? i would argue that criminalizing people in this way doesn’t lead to a reduction in transmissions, but rather to a decrease in testing, so as to not be held liable.

    for a more in-depth discussion about stigma, disclosure & criminalization (in canada) i would suggest checking out this blog post/comment thread: is it unethical if your HIV+ lover doesn’t disclose his status

  20. Wikipedia: “Studies on couples where one partner is infected show that with consistent condom use, HIV infection rates for the uninfected partner are below 1% per year.”

    If transmission can be controlled that easily, what can be the excuse for infecting multiple partners, as individuals like Sundiata Basir have? Not that I see a benefit in making these cases subject to strict liability–I think there needs to be proof of some kind of willful or knowing endangerment of others. But it IS reckless endangerment to expose someone to a lethal disease, and there must be some incentive for disclosure.

  21. The devil’s in the details, unfortunately. It’s easy when it’s a perfect storm scenario where someone knows they have something, doesn’t disclose, and does nothing to prevent non-consensual harm to their partners. Further along the spectrum, you have situations where an HIV+ person says “I absolutely told this person, they knew for months before we had sex,” and their partner denies having been told. (I think Alabama ran into that one a few years back.) Or when the positive partner withholds their status but insists on all available precautions. Or when someone honestly doesn’t know, but lies about having recently tested negative. Or, on the end where it’s actually criminalizing sexuality, those wonderful ’90s attempts to make it a felony for HIV+ people to have sex at all.

    This. Definitely, this.

    And, cases where the person (woman) is really powerless not to have sex, where marital rape is legal but she will probably be kicked out, beaten, etc. if she does disclose. Or even somewhere where marital rape is not legal, but she is in a domestic violence situation and could be in serious danger if she discloses. And cases where the person is a survival sex worker (who has no other means of survival) who does not disclose but uses protection.

    It is important to keep in mind that in addition to what your mind imagines the scenario would be, you also have to look at who is actually being affected by these laws, and what many of these situations actually are, in real life.

  23. or example, if my client says that s/he is going to go home and murder his/her parter i have an obligation to warm his/her partner. Same goes for HIV/AIDs. If a client has HIV/AIDs and plans to intentionally have sex with said parter without revealing HIV status, we have an obligation to warn. I hope this contributes to the discussion here…?

    Out of curiosity, what state are you in? I’m in Illinois and work under mandatory legal confidentiality, but I also have a legal duty to warn. The odd thing here is that it is illegal to reveal someone’s HIV status to another under any circumstances, and the rulings here have so far said that HIV status preempts the duty to warn. In other words, in your scenario, if my client said said he was going to go out and infect as many women as possible, then gave me a list of their names and contact info, my hands would be tied.

  24. One vote for squicked out by criminalization of sex.

    I generally dislike the “slippery slope” argument–especially considering many aspects and types of sex are already illegal, or as good as.

    I do think that if you are HIV+ (or have any STDs) you should inform your partner. I do think that you should ask your partner if they have STDs.

    I do think that if you *intend* to infect someone with HIV then *that* should be criminal. This is the only place where a potentially slippery slope may exist–moving from “intent to infect” to “unknowlying infected” or simply “infected” (in the case of, partners knowing of STD status, but having sex anyway). But I gotta go with RD–you need to consider if you’re effectively criminalizing the condition. That’s what makes it a complicated ethical question…

    …incidentally, HIV does not require a penis for transmission.

  25. Let’s not forget that when two people have unprotected sex, assuming that there is no coercion involved, BOTH of them are responsible for the consequences. Yes, I would certainly place much more of the blame on a person who knows they are HIV-positive and who doesn’t warn their partners, but if you have unprotected sex with someone who lies to you or doesn’t disclose their status (again, assuming that you consented to unprotected sex), you bear a significant amount of the responsibility.

    I don’t say this to absolve people like Benaissa of responsibility for infecting others, and I certainly don’t mean that if you contract an STI it’s all your fault and you have no right to be angry at a person who may have deceived you. I just think that infecting someone with an STD is very different from other malicious acts (once more, this is of course only true in the case of sex that is both consensual and consensually unprotected — not so if Mr. Scumbag “loses” the condom or something like that).

    I think that the best thing we can do to minimize some of the risks that come with sex is to foster a culture where people, especially young women, are empowered enough to insist on safe sex every single time — to regard their right to safe sex as non-negotiable.

    Criminal prosecution could set a dangerous precedent — imagine what the mens’ rights crowd would do with this. Say a man and a woman have unprotected sex because she’s on birth control, but the BC fails or she deceives him. He tries to get out of paternity payments because, poor him, he thought he was just getting lucky, not getting a baby. Obviously, this would not make sense because the man chose to have sex without a condom and take her word for it that she was on birth control. He had the means to protect himself from unwanted paternity, but he didn’t take it.

  26. Also, I’ve gotta throw my hat in with Jill: the idea of a criminal penalty for transmitting a virus makes me extremely uncomfortable. Absent some kind of serious evidence of intent, I worry that any such law is likely to be used to harass people with HIV. Besides, I’m suspicious of anything presented under a “public health” banner…

  27. As far as I know, Germany doesn’t prosecute people who used condoms, who haven’t had a documented HIV status (as proof that they knew)… Actually, I’m not aware that this kind of thing is being prosecuted much at all.

    But really, in this case we’re not talking marital rape or survival pressures; I don’t think there’s any excuse to have unprotected sex with (a least) three different people if you know you’re HIV positive.
    And as far as I gathered from the news coverage here, the whole point of the prosecution is that she allegedly knew her HIV status.

    I agree with gls though in that it’s completely inappropriate for this to end up in the press at all.

  29. I think the level of intent is the key issue here. I went to grad school in Illinois and my prof. told us about a case where a man was HIV+ but was going through severe denial and would not use protection and not disclose. Illinois, as someone said above, considers HIV status protected so all she could do was work with him on his thinking behind the issue.

    However, I think if there is someone out there infecting large amounts of people with the sole intention of infecting them there would be an instance for a case but that would be very hard to prove.

  30. What I meant to say was, uses protection when in a position to insist on it. If the john is arguing/forcing the issue then I think he deserves what he gets…also you have to keep in mind that criminalizing possession of condoms/using them as evidence of sex work hurts condom usage too.

  31. Okay, I just read up on it a little: the charges are indeed closer to reckless endangerment – something like an equivalent of asault, but nothing like murder or manslaughter.
    And the reason she was arrested in the first place was that according to the DA, there was a risk she would repeat her action (read, keep having unprotected sex despite her known HIV status).

    Of course, defining risk of repetition is always kind of sepculative, but it’s actually a very strong criterion for German prosecutors, with any kind of crime.

    I do see how this is a slippery slope, but I don’t think this particular case is over the top.

    And like Blitzgal pointed out, it’s ot the sex as such that’s being criminalized.
    You can say a lot of bad things about Germany, I’ll be the first to shout out most of them. But we don’t have the same traditions of slut shaming and censoring and controling sexual behavior.

  32. Hrm, tricky. I’m definitely in favour of services that provide people with support and guidance on effective and safe (for them!) disclosure, as well as information on safe(r) sex with AIDS/HIV+ for *everyone*. I do not agree with people being treated like biohazards, but I also believe that not disclosing known STI status violates one’s partners’ consent.

    My most personal experience with this issue comes from an acquaintance with a woman who was infected by someone aware of his status who did not disclose. She did pursue legal action against him (legal here at least, in Canada–I don’t know about anywhere else), and successfully (he served a prison term; I do not recall how long). Her decision to do so was because, of the 5 other people infected by her partner, no one else wanted to pursue charges, and she believed that he would not stop having unprotected sex without disclosing his status unless she took this action (she did not say to us that it gave her a sense of justice). She now gives talks on behalf of an AIDS/HIV+ support organization in my community, and advocates for both safer sex practices regardless of STI status and disclosure. I don’t know what I would have done in her situation, and I can’t begin to guess.

    My opinion of the efficacy of my judicial system is not high, and I am at a loss for how to respond to the behaviour of those individuals who knowingly put others at risk, while also not exposing them (and others who share their status and not their actions) to systemic abuse. I don’t believe that these actions are inherently pathological and I do believe that there is a meaningful effect for the social stigma attached to HIV+/AIDS status in undermining motivation for disclosure. But I also really do believe that people have a right to know the STI status of their sexual partners, and I’m just not sure how to best protect that right. I also wonder the magnitude of non-disclosure and infection resulting thereof.

  33. UnFit, I was talking more about these laws in general, than this specific case, but I’m not gonna rush to judgment here on her either.

    In CO, if someone is arrested for prostitution they are tested for HIV and it is mandatory. If they test positive, it goes on record. Next time they are arrested it is a serious felony, doesn’t matter if they used protection or not. They test the johns too but johns don’t have the same survival pressures in having sex so I don’t think it is such an issue to do it to them. There are other states that criminalize HIV+ sex workers too, whether they use, or insist on, or want to use, protection or not.

    And these laws in general absolutely are used against women in marital rape/DV situations too.

  35. If she knew she was HIV + and still insisted on having unprotected sex, then what the hell was she thinking. She knew the danger of infecting someone else, and didn’t want to disclose for whatever reason. That would be fine if a condom was used. I don’t want to criminalize sex for people who are HIV+, that’s insane and not fair. But, I do think that it is the right thing to do, morally and ethically, to make sure you use every precaution available to you when having sex. That means condoms every time. Her actions sound very selfish because she is not in a position of neglect or anything, she’s a freaking pop star in Germany. She has everything available to her at her disposal, therefore she occupies a position of some privilege, even if she is a woman, and, judging by the name, from immigrant ancestry.
    As for punishment, I think she should be sued by her partners, because medicine is expensive. As for jail time, I don’t think that’s wise. She didn’t sleep with these guys with the sole purpose of giving then HIV, but she acted in a negligent manner. The law generally puts the public safety above those of the individual. When someone has some kind of flu, bird, swine, whatever, and they refuse to go have treatment, they are taken, against their will, to be treated. With HIV, you obviously can’t just take people away because again, that’s insane. But I do think you can compel people to at least pursue safe sex, and if they refuse, then they should be punished. What that punishment should be, I haven’t the slightest idea.

  36. I think the level of intent is the key issue here. I went to grad school in Illinois and my prof. told us about a case where a man was HIV+ but was going through severe denial and would not use protection and not disclose.

    Did the professor in question teach an ethics course and have a last name starting with a Z?

  37. DCPirana: That would pretty much mean no unprotected sex, for anyone ever.

    I live in Hamburg, the city with maybe not the largest, but th best known red light district in Germany.

    The free clinics that test you for HIV here (not for other STD’s, that you always pay out of pocket unless you can convince the public health insurance that you’re part fo a high risk group) don’t evengive you your results in print. There is no virus quick testing either; the antibody test that’s available in Germany has a three month diagnose window.

    What you can do is go along to the clinic when your partner gets their test results, but that only works if you assume they haven’t had sex with someone else (or any other source of exposure) for the past three months.

    Of course the responsiblity is on both partners, but you eventually run into a situation where you’ll just have to trust your partner to a certain extent – or never, never, ever forego condoms, which at the very least becomes an issue if you ever want kids.

  38. absent some kind of serious evidence of intent, I worry that any such law is likely to be used to harass people with HIV.

    Yes.

  39. I totally agree with preying mantis on this one. It’s easy to construct “perfect storm” abstract ethical scenarios. However, even the way those are usually constructed casts an already-supicious light on some people but not on others. The post yeuxdefeu linked to is also really insightful. Here’s another quote from comments there:

    Most people believe that the rights of positive gay men to feel safe from harm come in a distant second to the rights of everyone else. Positive gay men are seen not as humans with needs and feelings and concerns about themselves and others, but as dangerous objects that other people need to be protected from.

    …and that definitely goes for women as well, who are often blamed as the “spreaders” of HIV, all over the world. As far as this particular case, the details are not totally clear from the brief report. It’s exceedingly common that HIV+ people pass on the infection without knowing that they’re positive. The disturbing idea in this report is that there’s a legal obligation to disclose your private health information before you have sex. Like Nico writes on Ickaprick:

    If disclosing your HIV+ status could necessarily prevent your HIV- partner from seroconverting due to sex with you — that is, if the mere act of disclosure could prevent transmission — then yes, I would think you would have an ethical obligation to disclose. However, disclosure does not do that.

    (And as some may guess, I also think disclosure is a crucial crossover issue to talk about because of how that idea plays out in the murders of trans women for not disclosing trans status.)

    I do think there’s a big difference between not disclosing and actively lying about your status, or willfully trying to infect and therefore harm others. But I have a hard time believing that is going on constantly when the most common way the virus is transmitted is due to people not getting tested and not knowing they’re positive.

    The upshot here is really that we are all responsible for our own safer sex practices and we all have to assume some degree of risk when we have sex, and deal with that. Suing your sex partners for risks you assume isn’t really the answer. Do you use protection every time you have sex? Or do you get tested with your partners? Do you ask about your partners’ status? I am certainly not 100% super-safe on this stuff myself, although I definitely believe that I could and should be better about it, so I am taking on some risk. How about you?

  40. I’m not trying to advertise the criminal justice system here, in Germany or anywhere. I think it has very few useful answers for anyhting. I was just saying that I don’t find this particular case as scary as Jill seems to, even though I see her larger point.

    I should point out, I think, that prostitution is legal in Germany, and there are wide networks that provide safe sex resources, free condoms and free and anonymous HIV testing… well, for everyone, but with a strong focus on sex workers. Which is a better idea than any prosecution at all, of course.

    But I’m really torn. What *do* you do with someone who goes around knowingly infecting people?

  41. “but if you have unprotected sex with someone who lies to you or doesn’t disclose their status (again, assuming that you consented to unprotected sex), you bear a significant amount of the responsibility.”

    Considering how many people wind up with an STD as the result of condomless sex with long-term, supposedly-clean, supposedly-monogamous partners, this seems a bit judgmental. I mean, I find it extraordinarily difficult to consider my mother to be significantly at fault for her hepatitis C infection, given that the man with whom she was having the dreaded unsafe sex was her husband of over a decade.

  42. Coming back to this tho, I can that if it really really is purposeful transmission, maybe it should be criminalized. Like people who actually set out to infect someone on purpose, or have no pressures on them wrt disclosure aside from just not caring about the other person. I do believe that happens sometimes, but I don’t think those people are the usual targets of these laws.

  43. Having followed the case more closely in the German media, my concerns are mostly in tune with gls’s: Although it is debatable whether non-disclosure ought to be criminalised at all*, the real question in this case is the way our authorities handled the situation. Benaissa was arrested in quite a public manner and kept on the premise that there might be an imminent threat that she repeat the crime. If you ask me, this. is. utter. bollocks. (Alas, no one ever does).

    I mean, when we think about how far back the alleged ‘crimes’ happened, I would really like to know whether the prosecution had any intelligence on Benaissa planning to have unprotected intercourse right then on that bloody evening. I’d rather doubt it. So why arrest here like that? Why hold her for so long?

    PLUS: The right to privacy is a big deal over here – or so I thought – but apparently that doesn’t apply to an ex-drug using, single mother from an immigrant / POC background. Least of all if she’s HIV+, right? Because that doesn’t bear any stigma at all… argh.

    It just leaves me wondering: Would that story unfold itself the way it did if the charges concerned, say, some male pop-starlet?

    * I cannot wholly agree with gls’s POV above; the whole situation is just so very murky, especially after the ‘EKAF’-findings (for short: under properly administered HAART-therapy, regular testing and strictly vaginal intercourse only, transmission is highly unlikely. I mean, ‘highly’ as in ‘almost impossible and thus negligible’) and considering that the following is so damn hard to evaluate: Who said what, who denies having/having not obtained knowledge of infection, etc…

    Additionally, I think it is a matter of responsibility – can we really make a person living with HIV/AIDS fully responsible not only for their own, but also for their partner’s health? What if the partner declines safer sex? What if the HIV+ person has to fear experiencing violence or discrimination through their disclosure? When and where should the disclosure take place? I am all in favour of providing everyone with the required knowledge of how to reduce exposure to harmful diseases and then also provide them with the chance of taking responsibility for their own actions. (Although I personally do believe that there is a moral / ethical way to handle this, i.e. disclose or decline.)

    These are murky, murky waters we’re swimming in here, and rash generalisations as tossed out by some German media won’t get us anywhere. Let’s not remember that the riskiest sex is unprotected sex, no matter with whom or when; we simply cannot know 100% whether someone (including ourselves) carry the virus unless we insist on safer sex all the time, every time. AND we don’t usually drag people to court over Hep B/C infections, etc. (This may seem like a moot point, but those out there who seem to consider HIV but a chronic disease might want to ponder the question.)

    Sorry for the rant. It just pisses me off so much and does so little but re-criminalise a whole lot of people.

  44. High burden of proof, tho, to show intent, and even if only actual intent were criminalized (as opposed to just knowing yr status and not disclosing) the application of the laws would probably still be really fucked up.

  45. I’m with Holly and PM. It doesn’t just discourage testing–it criminalizes every circumstance that predisposes you to shitty healthcare. Should people in certain categories assume they’re infected until they know otherwise?

    This discussion is reminiscent of the debates over whether it’s possible to criminalize maternal drug use as “fetal abuse,” or abuse of the as-yet-unborn baby. When we treat a human body as a criminal vector, we introduce a whole bunch of dangerous conclusions about bodily sovreignty and privacy. I’m not sure it’s possible to legislate this moral question.

  47. Hm, okay, throwing another idea out there:

    I feel like there is a duty of care in here somewhere, but I’m reluctant to lay it on either the person who is infected or on their partner alone (for all the reasons stated here and more). Putting it on both seems… also complicated. My brain is fritzing on that one a little (might be the adversarial system I’m used to, which insists on a “good guy” and a “bad guy”, so I’ll maybe come back to that later), and my point is also to get away from the individual-responsibility-in-a-vacuum idea.

    There’s a third player in all this. Or at least I believe so. Acknowledging that there are almost certainly no existing legal statutes to cover this possibility, nevertheless, it is possible that the failure of a government to provide reasonable access to accurate information and resources about safer sex practices could constitute a state crime? I ask because the woman I mentioned before (and my own mother, with whom I had to have a “talk” after hearing this other woman speak), did not receive adequate sex ed in high school (thirty someodd years before she was infected), either in knowing the importance of condoms or in how to request that her partner use a condom. I’m getting away from the specific case at hand here, I know, and apologies if this is too much of a derail. There is individual responsibility for educating oneself, but damn if the state hasn’t fallen down on the job a lot too.

    This isn’t so much of an “instead of” idea, as a “what about … too?” one.

    On another note, I’m really skeptical about the number of individuals who are making a deliberate decision to infect other people. I’m sure it’s happened, but it seems like the same thing that happens with most criminal categories: very, very few people are actually doing the obviously heinous.

  48. In response to preying mantis,

    I understand your objections, and that’s why I tried to emphasize that I don’t mean that anyone who has unprotected sex, even with a long-term supposedly monogamous partner, should be considered to “deserve it.” And when I say that the person who is infected carries a “significant amount of the responsibility,” I simply meant that by engaging in unprotected sex, they are taking a risk. People have to decide for themselves if they trust their partners enough to take that risk. In a casual sex encounter where both people opt not to use condoms, the responsibility for any consequences is, in my mind, 50/50. When one person already knows they are HIV+, it’s more like 75/25, or 90/10, whatever value you want to attach — the point is, the infected person knew they were taking a risk with someone they didn’t know and had no reason to trust. It is different in a monogamous LTR, where people put their trust in each other and one person betrays that trust. Yes, the victim took a risk by trusting the person who infected him/her, but that’s like trusting your spouse to not gamble away your life savings. I certainly didn’t mean that in cases like your mother’s, the person whose trust was betrayed deserves the blame for being trusting. I’m very sorry, of course, to hear of such an unfortunate case.

    When you love and trust someone, you take huge and wholly unnecessary risks that are very often work it nonetheless. My point is that people should accept that having unprotected sex these days is taking a huge risk, and safe sex isn’t just the responsibility of people who are already infected — it’s something everyone should take seriously for their own well being.

  49. This is one of those things that, while clearly morally *wrong* is very tricky to criminalize.

    “but if you have unprotected sex with someone who lies to you or doesn’t disclose their status (again, assuming that you consented to unprotected sex), you bear a significant amount of the responsibility.”

    I’m with mantis on this one. I’d go farther, and say that in the majority of the world, women infected with HIV don’t have the ability to “consent” to unprotected sex–unprotected sex may be their only option. Apparently in Africa this frequently takes the form of husbands sleeping with prostitutes (men or women) who are positive, and then with their wives. Refusing to have sex for these women (prostitutes OR wives) just isn’t an option, so. Might want to step back from the victim blaming.

  51. I understand the argument about proposing that these kinds of laws could discourage testing, but this argument is a much more slippery slope than arguments for some sort of criminalization. For example, we see this argument for cases of institutionalized wrongdoing- we can’t have laws against it if we want governmental actions to be properly documented. If there is the possibility that certain actions could be criminal, then individuals will not properly document behavior or recognize the letter of the law. In our societies we have a social contract that has a minimum of behavioral restrictions. Two wrongs do not make a right. We can simultaneously agitate for the non-stigmatization of HIV+ members of society while addressing issues of transmission and privacy. We don’t allow people to drink and drive, yet they do. Is it still worthwhile to have the laws on the books? Is the deterrence that those laws provide enough, or do they also provide a springboard for openly discussing why society views it as wrong to get behind the wheel while incapacitated?

  52. Additionally, I think it is a matter of responsibility – can we really make a person living with HIV/AIDS fully responsible not only for their own, but also for their partner’s health? What if the partner declines safer sex? What if the HIV+ person has to fear experiencing violence or discrimination through their disclosure?

    Yes exactly.

  53. And also, of course, like I said before, survival pressures are another issue to it. In addition to all that.

  54. If I am driving a car, my operation of the vehicle makes me responsible for the well-being of my passengers and other people endangered by my control of the vehicle. People are not cars, but I think the analogy is perfectly apt. Few laws are perfect in that we wouldn’t be able to come up with conceivable scenarios of unequal burden. Very few laws on the books are implemented in all possible cases as the vast majority of lawbreaking goes unreported. Jaywalking for example. However, if the net benefit of the law outweighs the negatives, I am for it. I think the possible deterrence here is well worth it, but of course I would equally advocate for a massive increase in HIV prevention, treatment and safe sex awareness.

  56. I’m sorry I don’t have time to be more clear, but it makes sense to me. I’ll elaborate later should my day allow. On balance I support the criminalization of knowing transmission of HIV, just as I support laws for negligent homicide in relation to the operation of a motor vehicle. While this could encourage some hypothetical individuals to not get tested, we have some presumption that not getting tested has its own form of deterrence- HIV is lethal if not treated. I support the law, but also support our understanding and discussion of the possible ramifications of such a law and where unequal burdens of such laws may be present, and ameliorate them where we can. These laws are not a zero sum game, and the odds of them being enforced magically in every situation is low.

  57. I was intrigued that someone above suggested that negligent failure to disclose status (and perhaps even active deception about one’s status) shouldn’t incur liability provided the sex was “consensual”. What exactly could that mean under the circumstances?

    We’ve occasionally read here about cases where (for instance) some guy slips into the darkened guest room where his brother’s girlfriend is sleeping and has sex with her—which she goes along with “willingly” under the mistaken impression that it’s her boyfriend. Everybody understands that’s rape, and that the superficial “consent” here doesn’t count. So if someone who knows they’re HIV+ says “no, I’ve been checked, we don’t need a condom,” and the other person agrees, in what meaningful sense should we count that as “consensual”? Obviously not every untruth someone might tell in the course of a relationship undermines consent, but clearly SOME of them are serious enough to do so, and this seems like a pretty good candidate.

  58. Julian, that’s a good point, and something I was thinking about as I wrote this post. But like you said, it’s a matter of line-drawing — if someone has chlamydia but they tell you they’re STD-free and you contract it, does that effectively withdraw your consent? Was that consent not meaningful? I think the difference comes in because STDs are a reasonably foreseeable risk to sexual activity; certainly one doesn’t consent to get an STD every time one has sex, but it’s a predictable outcome of consensual sex. Having sex with a dude who pretends to be your boyfriend is a different story; he knew that the woman in question was NOT consenting to have sex with him, and he knew that the ploy worked specifically because your boyfriend’s brother pretending to be your boyfriend isn’t foreseeable or predictable.

    And I’ll put it out there again that I’d p robably be ok with tort liability; I’m just troubled with holding people criminally liable for negligent HIV transmission. Intentional transmission is another story.

  59. While this could encourage some hypothetical individuals to not get tested, we have some presumption that not getting tested has its own form of deterrence- HIV is lethal if not treated.

    No, HIV is lethal. It’s a terminal, incurable disease–and in America, informed self-interest is not the only barrier between a sick person and treatment. That’s why nobody on this thread is saying that people should go to jail for knowingly giving their partners syphilis or chlamydia or the common cold.

    If this were true, and if it were also true that preventing deaths were our primary social objective, then nobody would be infected through recklessness or ignorance. Nobody would see any value in ignoring the disease or hiding it. And nobody would not take the duty of protection upon themselves as a matter of course.

    The reason this legislation is arguably necessary is that many people seek protection in the belief that AIDS is not relevant to their lives. Ignorance, not malicious intent or even knowing recklessness, is the vehicle for transmission. The problem is not that people don’t get tested because they think they’ll be hauled into court; the problem is that people don’t get tested.

    And how can we legislate against “willful” transmission of AIDS–that is, having unprotected sex when you know you have a sexually-transmitted disease–without also condemning a refusal to protect oneself–that is, having unprotected sex when you know your partner might have a sexually-transmitted disease? Given the prevalence of HIV, how can anybody reasonably expect that unprotected sex does not put them at risk for contracting HIV?

  61. If I am driving a car, my operation of the vehicle makes me responsible for the well-being of my passengers and other people endangered by my control of the vehicle. People are not cars, but I think the analogy is perfectly apt.

    I don’t, because that’s not how STDs work. Sex can’t be graded for disease transmission like drinks are for alcohol content; it’s all risk upon risk, not really quantifiable in an individual. To use your analogy, everybody who gets behind the wheel may have taken drugs or been drugged, and may not be aware of their personal level of intoxication or risk. But we, legislators and sexually-active citizens, know that very few people are totally safe and very few people are totally aware and not all people are totally honest: every encounter is potentially unsafe. Given that, why are some people who bareback not irresponsible?

  62. “Given the prevalence of HIV, how can anybody reasonably expect that unprotected sex does not put them at risk for contracting HIV?”

    There are an estimated 1.1 million people in the US (out of 300 million). There are 6 million car accidents a year. Dr. Google says that if your partner is HIV positive and you don’t use protection, your odds of contracting HIV are 1 in 500. Given those numbers, I’d say that your odds of contracting HIV in the US are probably lower than your odds of getting run over by someone who has HIV.

    I’m not trying to be flip. Wear your condoms and dental dams, kids!

    What I’m saying is that I don’t think that we should be dogpiling on people who have unprotected sex and saying “Well, you should have known you’d get HIV!” That seems kind of judgy. Dogpile on them for making bad choices, sure, because other STDs and random infections and pregnancy are all pretty likely, and hey, it’s 2009. Unprotected sex is like, SOOOO twenty years ago. But saying “X had unprotected sex, X should reasonably expect that they would contract HIV” is kind of…I don’t know, it doesn’t sit right. It seems too close to what the anti-choice wingers say when women get pregnant: “Well, you SHOULD HAVE KNOWN…”

    I do think the car analogy works.

    Say my car’s brakes are shitty. My mechanic told me about this, and in fact told me that my car was a hazard to all occupants. You ask me for a ride. I say “Sure, hop in!” We get into a wreck due to my brakes failing. You lose a limb.

    Is it my fault? Yes. Should I have told you that my car was unsafe? Yes. If I told you what my mechanic said and you said “Hey, nobody lives forever, I’ll buy gas!” (HIV+, full disclosure) OR if I had no idea the brakes were bad (HIV+, no idea) OR if I’d had the brakes repaired (HIV+, disclosure, safer sex) and they failed anyway, not so much.

    Flip side. Say my partner has AIDS. I contract Swine Flu and knowingly expose my partner, whose immune system is depressed. S/he dies. Do I bear any responsibility?

  63. Jill-
    Right, but “reasonably foreseeable” to what extent and on the basis of what prior assurances? To pick a frivolous analogy: If I buy a second-hand TV, with no explicit warranty, there’s always a risk that it’ll just conk out a few days after I first plug it in. Just my hard luck if that occurs. If the owner *knows* the TV is broken and represents it as being in great shape, falsely claiming he was just watching House on it a few minutes ago, that’s fraud. If the owner suspects it’s about to blow out but doesn’t say anything either way, fuzzier ground. I don’t mean to lean too heavily on an analogy to something that’s so manifestly not analogous, but what’s “reasonably foreseeable” and how it gives rise to “informed consent” seems pretty heavily context-dependent, not the sort of thing where you could set a baseline rule for sexual relations tout court.

  64. Ok thanks Punko. More later, but I am not so willing to say “fuck the collateral” as my community is part of the collateral. Plus I am not so convinced that malicious, intentional transmission is such a common threat, tho like I said above I believe it probably does happen sometimes. I think that transmission from the kind of knowing recklessness that is driven only by ego and not caring about your partner, is probably a little more common, especially in men who hate women or certain groups of women, but also that these people are not the main targets of the laws, and if you go after these people you are going to wreak WAY more collateral in the convictions than convictions of the kind you want, especially with how power is distributed in society.

    And I absolutely believe that not all cases of knowing your status and failing to disclose (or even lying) fall into either category (maliciousness or ego/just not caring) or that they should be criminalized.

  65. I think the basic problem here is that we’re getting caught up in the unlikely hypotheticals and forgetting about the every-day uses of a law like this. Sure, someone who knows they’re HIV+ and goes around infecting partners out of malice is a terrifying scenario, but thats not exactly a common reality. A person who did that would likely be guilty of a variety of other crimes (say, murder, attempted murder, assault with a deadly weapon, assault causing severe bodily harm, etc) once you were able to establish intent. As such, we don’t really need a new law or legal concept to deal with such a person; we don’t have a different law to prosecute those who shoot someone to death versus those who stab people to death.

    My problem with a new law is that, no matter how well written or well intended, eventually its going to end up in the hands of prosecutors and police with agendas. Remember the DA who tried to subpoena Planned Parenthood’s records to, he claimed, fish for possible instances of statutory rape? If you put a law against having sex without disclosing HIV+ status on the books it will be abused regularly, inventively, and maliciously by police and prosecutors. It will be used to invade privacy through investigations, it will be used to hold HIV+ people, it will be used as leverage in other cases, it will become just another tool to be used by whoever has the power to wield it. HIV+ populations are already marginalized, they tend to be populations with multiple minority statuses in addition to being HIV+, they get abused by the Powers That Be enough as it is.

  66. If someone completely knows that they have HIV and they have consensual, unprotected sex without disclosing, then I do think that they are guilty of recklessly endangering someone else’s life. Yes, having unprotected sex with anyone ever is a huge risk, but it’s something that people do, and what’s more, I don’t follow my partners into the clinic and look over their shoulder to make sure they actually get tested and aren’t misreporting the results. I ask them about their histories, I ask them to get tested, but I trust their reporting.

    I have no right to contact their doctor and ask for their medical histories; I have no way to confirm what they tell me besides their own reporting unless some sort of complicated waiver comes into it. And that’s how it should be.

    But given that there’s no other way to tell if having sex with someone might cause me a slow horrible death, I think false reporting should be counted as reckless endangerment.

  67. I have been wanting to answer some more of UnFit’s comments too…

    I should point out, I think, that prostitution is legal in Germany, and there are wide networks that provide safe sex resources, free condoms and free and anonymous HIV testing… well, for everyone, but with a strong focus on sex workers. Which is a better idea than any prosecution at all, of course.

    That is of course fantastic and should be true everywhere but it does not suddenly make everyone cured. There are still gonna be HIV+ people doing survival prostitution no matter how much testing/safe sex resources there is, and I do not think that should be criminalized.

    As far as I know, Germany doesn’t prosecute people who used condoms, who haven’t had a documented HIV status (as proof that they knew)…

    …And as far as I gathered from the news coverage here, the whole point of the prosecution is that she allegedly knew her HIV status.

    Knowing your status != intentionally transmitting. Not proecuting people who use condoms is good, but hard to prove whether there was a condom (and who do folks believe?), and even if there was no condom you don’t know that it was the HIV+ person’s idea not to use one, that the other person was not exerting pressure etc.

  68. … piny, I think that’s very impractical. I am saying this as a mid-twenties heterosexual woman, mind, and I know very few people in my demographic who consistently use condoms with established partners. I am an outlier for making STD testing a requirement with any partner with whom I am planning not to use condoms, and as I note above, that depends on self-reporting. If someone is malicious enough to lie to me in that context, I don’t think I deserve to, among other things, forgo the ability to safely give birth to or nurse children, ever have a new sexual partner without putting them at risk, spend the rest of my life on dangerous and unpleasant medication, and probably die a slow painful lingering death.

  69. First of all, these prosecutions aren’t new. And I am glad that the law has caught up. In the 1990’s a Darnell “Bossman” McGee infected 18 women in St. Louis, the law was not equipped to handle it, and he was executed on the street, probably by a victim, or victim’s relative.

    Anyone who doesn’t disclose their + status to a partner is committing assault, or attempted murder.

    And that’s true of any infectious disease with lifelong consequences. If you know you have herpes and don’t pass that information to your partner you are committing assault. If you have know you have TB and go into your office, you are committing assault. If you know you have typhus, and you serve food, you are committing assault.

    I don’t have the slightest bit of a problem with these prosecutions.

  70. I’m not convinced these laws “f*ck the collateral”- although I know we can all come up with scenarios that are unfortunate- will these scenarios be the rule in reality or the exception, and what are the options on the table to minimize collateral damage? To piny, I am well-aware that HIV leading to AIDS is absolutely lethal, my wording was imprecise due to the fact that in general, we can be talking about longish time scales if the HIV is drug responsive etc. etc, or even if untreated, the natural latency and variable immune systems for different people. These time scales are exactly why I think we see people knowingly take the chance of infecting others. The risk does not seem apparent to them.

    I will also hesitate to consult Dr. Google about infection odds given that those can very by viral load, whether the infected individual is being treated, the type of sex involved and the frequency of the intercourse. If I felt that a tort-based approach were accessible or reasonable for most people, then that could be a realistic option. The reality is either a criminal or a tort based approach will either not be available for most or will not be applied for most instances. The law is never a carrot- it is a stick. I feel we should work on both carrots and sticks simultaneously. I do not believe it is enough to favor only a carrot approach, and I do not think it is asking too much to design some sort of stick.

  71. Something like 80% of the population has herpes. Health care folks don’t even test for it unless people are complaining of sores, so they can know how to treat the sores. You don’t have to be symptomatic at all to transmit it.

    Chances are you have herpes, Bruce. Gonna run out and get a blood test and tell every partner from here on out?

  72. I suppose can see where the pro-this-law side is coming from, but I shudder to think what, for example, Attorney General John Ashcroft and his appointees might have done with it.

  75. Involuntary manslaughter, anyone?

    I’m sorry, but if I slept with someone who KNEW that they were HIV positive, and they did not tell me before we had unprotected sex, and I contracted the virus from that person, I would want them prosecuted, too. In this situation, the fact that I willingly slept with the person without using protection is irrelevant. The person who is HIV positive has an obligation to tell me his status, and if they don’t want to tell me their status, then they have an obligation to not have sex with me (obviously, if the positive person is raped, that’s an entirely different story and not at all what I am talking about here). People are prosecuted and convicted of involuntary manslaughter all the time for accidental deaths that could have been easily prevented. The intention doesn’t have to be there for crime to be committed.

  76. Lirpa, consensual sex is not the same as someone hitting you in the head with a baseball bat. There is a RISK of HIV transmission if you have sex with a positive person. There is a RISK that anyone you sleep with might be positive, since most transmissions are from people who don’t know they’re positive. (And that’s part of why these “hypothetical scenarios” are both destructive, harmful to a highly stigmatized population, and rather scurrilous in a nearly bigoted way. Go back and read what William wrote and what half a dozen people in this thread have been saying.)

    You CHOOSE to take that risk every time you sleep with someone. You choose to take more risks if you don’t ask your partner about their status, if you don’t use protection, if you have unprotected sex without both getting tested or better yet being tested together, and so forth. Those are your risks that you’re taking.

    It is NEVER anyone’s obligation to disclose private medical information to you. That is just utter bullshit, I’m sorry. If you want to know about someone’s medical status, you can ask them. They don’t have to tell you. If they don’t want to tell you, you can decide not to have sex with them.

    All of this “no they have to tell me, otherwise I might accidentally sleep with someone who has a disease” crap is the very definition of stigmatization. And it’s applied to a lot of other kinds of people too. What else do you INSIST that someone disclose to you before you have sex with them, because it might put you at some kind of risk?

    And yes, as has been said many times already, all of these hypotheticals about malicious, deceitful HIV+ people who might LIE to you if you ask them, or do whatever they can to deliberately infect you — even the ones that are “based on a real story I heard” are no better than stories about trans people that go around trying to trick non-trans people into sleeping with them in order to make them gay. Indeed they’re worse, because they’re about transmission of a fatal condition.

  77. Also, this shouldn’t need to be pointed out, but HIV is not an automatic death sentence. You don’t kill someone by giving them HIV. There are people who have had HIV for years without dying, and I know someone who tested HIV+ and then recovered from it due to some kind of resistance that’s not well-understood. That’s rare and exceptional, million to one, but I think it’s worth pointing out that giving someone HIV is not the same thing as cutting their head off, either. It’s still really bad, but it’s not “murder.”

  78. I am talking type 1 plus type 2, type 2 is usually genital only, type one can be oral, genital, etc. I think 20% is low even if you are just talking type 2, which is silly since either can infect the genitals, seriously, based on a study of blood test results I just sat thru at a 4.5-hour HIV prevention group meeting (why I sat thru that whole thing, beats me, but they were looking for sex worker representation). Come to think of it the results were only for New York City, but the researcher suggested they were not far off from the rest of the nation.

    Ok, just found the results. 71% of people have type 1, 28% of people have type 2. If you are talking about people with one or the other or both, it prolly is like 80%, but really there is no need to distinguish like that, type 2 is not actually “worse” at all than type 1, and both can infect genitals and often do.

    This was by blood test, vast majority had been undiagnosed.

  79. I hope that the HIV strains are being analyzed to rule out coincidental infection.

    I don’t think that consent exists without all the key info being available. To me it seems a bit like rape to have sex without obtaining real consent. Valuing your own desire to do something sexual over the wellbeing of the other person is a huge component of why rape is wrong imo

  80. Knowing your status != intentionally transmitting.

    I can’t see any meaningful distinction between a person knowing his/her status and failing to reveal it, versus intentionally transmitting. If I punch a guy in his face, does it matter whether I wanted to punch him in the face, or whether I simply wanted to practice my left hook and didn’t care that a face happened to be in the way?

  82. Holly,

    piny I think earlier in the thread comes from the different position that HIV is effectively lethal, albeit only eventually so, essentially a very slow lethal poison, and I agree with that assessment. I additionally think most people in the thread are presuming the “asking” portion of the mandatory disclosure- I think even when it has been unstated in certain comments in the thread, most people are assuming that people will ask their partners.
    Additionally, I think many people are arguing about how they feel people should act distinct from what the law might be- perhaps when they say people should have to disclose their status with their partners, they are saying that that is how they believe people should act. This is my take on some of the comments and I think people should be explicit where they are talking about their legal stance and their ethical stance.

    Since there is only attempted murder and not presumptive murder, I would guess any sort of law would have penalties similar to assault w/grievous bodily harm or attempted murder, and upon subsequent death a charge of murder could then be brought.

  83. “Also, this shouldn’t need to be pointed out, but HIV is not an automatic death sentence. You don’t kill someone by giving them HIV.”

    plenty of people DO die from HIV. the ones who do not generally require a lot more medical care than those who are not positive, and not everyone can afford it.

    ‘You CHOOSE to take that risk every time you sleep with someone. You choose to take more risks if you don’t ask your partner about their status, if you don’t use protection, if you have unprotected sex without both getting tested or better yet being tested together, and so forth. Those are your risks that you’re taking.”

    You can play the ‘you choose to consent to _____(horrible thing)’ game with any activity ever, because bad things happen all the time. By this logic people consent to food poisoning whenever they let someone else prepare their food, it doesn’t make it right for me to knowingly feed other people food that will sicken them. They shouldn’t have to ask if the food is sickening or not because only a horrible cruel person would spread disease on purpose, and we can’t really get along in society by assuming everyone we meet is extremely cruel.

    “It is NEVER anyone’s obligation to disclose private medical information to you. That is just utter bullshit, I’m sorry. If you want to know about someone’s medical status, you can ask them. ”

    TB is a disease that can be contracted simply by being in the same
    room as the wrong person. Should we have to anticipate the cruelty of any person we see by asking them if they have a disease? Or is it that people who aren’t jerks will tell you because they have a normal amount of concern for other people?

    It is not about trying to invade someone elses privacy so much
    as protecting your own health. I subscribe to the idea that your right to swing your fist ends at the tip of my nose. This is directly related to that because your right to medical privacy certainly ends at the point that it can harm others.

    I also don’t see why lying by omission is better than direct lying. It is victim blaming.

    “All of this “no they have to tell me, otherwise I might accidentally sleep with someone who has a disease” crap is the very definition of stigmatization. ”

    No, that has nothing to do with stigma. It has a lot more to do with not wanting to cause others to suffer via diseases. The stigma that effects people with HIV has to do with how they got it and the judgements people make about things like having sex or using drugs. Damn near everyone avoids any type of disease because it is physically bothersome to endure it, but people rarely judge other peoples actions when they get a cold. Making a value judgement based on the type of disease someone has is the definition of stigma.

  84. “I can’t see any meaningful distinction between a person knowing his/her status and failing to reveal it, versus intentionally transmitting. If I punch a guy in his face, does it matter whether I wanted to punch him in the face, or whether I simply wanted to practice my left hook and didn’t care that a face happened to be in the way?”

    ??I think intentionally punching someone in the face is a lot worse. Especially if the vast majority of the time you won’t hit anyone in the face when you practice your left hook, and you have tried it a few times and not punched anyone. It isn’t responsible or wise and could potentially hurt someone but its way out of the league of evil that wanting to cause harm falls into. People who mess up on accident because of ignorance/wrecklessness are at least sorry about it. We are all foolish and wreckless about somethings sometimes, but I think few of us are out to hurt anyone on purpose.

    Also, there is a window period on HIV infections that makes it hard to always test positive after getting the virus. There are other practical problems with testing that way. A lot of them.

  85. nails, my hypothetical was (perhaps I didn’t explain it well) punching someone in the face for the sake of punching him, versus punching someone in the face for the sake of practice, but knowing he would get punched and not warning him for whatever reason. In other words, the presence or lack of malice doesn’t matter one bit to the person who is getting hurt. It amazes me that people are talking about “consensual sex” in reference to a scenario where, forget “enthusiastic consent”, the conditions for even informed consent is not being met.

    Obviously there can be mitigating circumstances – if a sex worker is forced by her pimp to not disclose her status, obviously she should not be punished; if someone had reasonable doubt about his or her status, that should count for something. But the public good is definitely well served by enforcing the very basic idea that a person cannot knowingly expose another person to a serious health risk without informing him or her. I also don’t buy that these laws provide a meaningful disincentive to getting tested – the seriousness of Hiv/AIDS is such that people considering getting tested are much more likely to be thinking about the consequences for their own health rather than the conditions under which they can have unprotected sex.

  87. … piny, I think that’s very impractical. I am saying this as a mid-twenties heterosexual woman, mind, and I know very few people in my demographic who consistently use condoms with established partners. I am an outlier for making STD testing a requirement with any partner with whom I am planning not to use condoms, and as I note above, that depends on self-reporting. If someone is malicious enough to lie to me in that context, I don’t think I deserve to, among other things, forgo the ability to safely give birth to or nurse children, ever have a new sexual partner without putting them at risk, spend the rest of my life on dangerous and unpleasant medication, and probably die a slow painful lingering death.

    And it sounds like you wouldn’t consider yourself culpable if that situation made you a vector for a third partner, even though you know that your system relies on a pretty big variable that just happens to be the nightmare scenario we supposedly need laws against. And you shouldn’t. Of course you shouldn’t see HIV as some sort of poetic justice. I didn’t say anything about deserving anything. Which people do you think do deserve to die a slow painful lingering death?

    piny I think earlier in the thread comes from the different position that HIV is effectively lethal, albeit only eventually so, essentially a very slow lethal poison, and I agree with that assessment. I additionally think most people in the thread are presuming the “asking” portion of the mandatory disclosure- I think even when it has been unstated in certain comments in the thread, most people are assuming that people will ask their partners.

    Although I think it’s fair to describe it as effectively lethal, and additionally fair to describe it as a really serious disease, my point was more that the deterrent effects you were describing are a little more complex than that.

    And why are they assuming that? Is that how most people behave? Do you think that someone with HIV is morally obligated to disclose but only if their partner asks them to? Is it not lying if you just don’t volunteer the information before you go on to have unprotected sex with somebody?

  88. And when I say that the person who is infected carries a “significant amount of the responsibility,” I simply meant that by engaging in unprotected sex, they are taking a risk. People have to decide for themselves if they trust their partners enough to take that risk. In a casual sex encounter where both people opt not to use condoms, the responsibility for any consequences is, in my mind, 50/50. When one person already knows they are HIV+, it’s more like 75/25, or 90/10, whatever value you want to attach — the point is, the infected person knew they were taking a risk with someone they didn’t know and had no reason to trust.

    Where I come from we call this “blaming the victim.” There is definitely a risk, but the risk we’re talking about is the risk of wrongdoing by someone else.

    I’m not sure about mere nondisclosure, but I definitely support criminalization of lying about your HIV-positive status. We’re talking about a deadly, incurable disease here. Of course, it’s no longer as deadly as it used to be: on a course of expensive medications with nasty side effects, you may be able to survive for several decades.

  89. I mean, is it really honest or morally responsible to assume that someone who doesn’t ask just doesn’t care whether they get dosed with a slow lethal poison? Is that the logical explanation?

  90. piny- I don’t think we are disagreeing- I was trying to respond to Holly’s statement about it being BS that people be compelled to announce their HIV status. I think the legal level would probably have to be infection and maybe not just exposure, although there could be a case made for deliberate exposure being attempted murder or assault, where my feeling on the ethical considerations are the only ethical way to behave is to share your status with your partner. Some people are arguing that there should be no law at all, but if there were to be a law it could have many shapes and sizes.

    I guess people could try to come up with situations where it could somehow be OK to not divulge the information (perhaps they have knowledge that their viral load is below detection and they always have safe sex, but I don’t think this would cut it). I think people in the thread may be commenting about either the legal or the ethical considerations without being explicit. That is what I have been talking about.

  91. Does anyone remember the case of the man 2 years ago knowingly took a trans-Atlantic flight while infected with a highly contagious and dangerous form of tuberculosis?

    I know he was under quarantine, but I can’t remember if he broke any laws by putting the planeload of people at risk. He was sued by 9 people who said he infected them with TB, but I don’t know the results, or if they matter.

    It does seem to have parallels to this, though.

    http://www.foxnews.com/story/0,2933,276336,00.html

  92. This does not criminalize a disease, nor does it criminalize people who suffer from the disease. What it criminalises is *knowingly* telling a lie that then causes harm and potentially eventual death to another human being. If someone doesn’t know their status, or if they are honest about their status, the law would not be involved in any way in a case of transmission. The reason the law was broken here is that this person told a lie to someone who trusted them, and as a result of that lie, this person will suffer extensive harm.

    Or look at it from another perspective: sex requires informed consent. How can you give informed consent if your partner is dishonest with you, and knowingly omits a fact that would be extremely important to your sexual health? If a person lies to another about their HIV status, they are taking away their partner’s ability to give informed consent at all.

    The status of a person’s sexual health is no-one else’s business – until that person chooses to engage in sex with another individual. Because when it comes to transmittable illnesses, it darn well becomes that other individual’s business right then and there, and honesty should be absolutely required, not only morally but also, because of the consequences, legally.

  93. I’m pretty sure it’s established case law in the UK that if you know you have a STI and don’t inform your partner before having unprotected sex, then it is assault (I can’t remember if it is also considered a form of rape, on the grounds that there is no informed consent). If both parties know, or neither party knows about the STI status of the infecter then it is deemed not a crime.

    As far as I am aware, a series of cases moved it from deliberate intent to infect one’s partner, to intentionally lying, to concealing the fact, to simply not declaring it up-front. A parallel series of cases moved it first from deadly diseases (HIV) to non-deadly STIs (although HIV is considered GBH, non-deadly diseases are simple assault and battery). There was then, I think, a case that combined the two, establishing that simple non-declaration of a known non-deadly STI counts as well, under the previous precedents.

    As I understand it (but I am not a lawyer, I only know this stuff because I found the cases that serve as precedents while looking for other legal cases relating to sex and violence), for a conviction it usually would have to be shown that it was known that the infected person had definitely not been infected with the disease before having sex with the infecter.

    My feeling is that it is certainly immoral to conceal a known STI from a partner, and that where that leads to that other person putting themselves at higher risk of infection (i.e. unprotected sex), then it should be considered criminal behaviour. On the other hand, would I trust people in general to act ethically in these situations? Probably not, which is why the advice is always to use a condom unless you’ve both got a series of test results come back negative (because STIs take time to show up, and because you can’t be sure the other person isn’t sleeping around)

  94. I’m sorry, but people who really really should know better have posted a lot of offensive crap on this blog. Like basically, “if you have sex, you should know you might get AIDS. Even if the person says they’re clean. Even if it’s your husband of 25 years, and if you don’t wear a condom every time, you deserved it” (slut).

    That is basically the equivalent of saying: men often beat women. Some men are even abusive murderers. Tou have a chance, every time you meet a guy somewhere that is not a police station, of being raped, murdered, and having your body end up in a dumpster. So if you agree to get coffee with a coworker or something, he strangles you, he shouldn’t be prosecuted because you should have realized that could happen. I mean, jeez. Stupid people thinking that another person should take responsibility for NOT murdering you.

    Why? Cause intentionally giving someone HIV/AIDS IS reckless endangerment at best, murder at worst. HIV/AIDS is a FATAL disease. Period. The end result is death. It may be 5, 10, 30 years, but there is no cure for AIDS, and, sadly, may never be (from someone I know who’s spent 15 years in a lab looking for a cure). Dying from AIDS is one of the shittiest ways to die, and while drugs can keep you alive and healthy, they cannot ward off the inevitable, not to mention that they are expensive and you must structure your life around taking them. I’m shocked, and frankly, kind of offended by people who seem so cavalier about this, and even more shocked with people who compare it to the common cold, or even a 100% treatable STD.

    Secondly, I am blown away that people who view a guy lying about wearing a condom as rape (consensus at feministe in earlier threads), but not a guy lying about his HIV status. I mean, isn’t the *worst* that can happen to you if a guy doesn’t wear a condom that you get infected with HIV? I can’t believe there is even an argument on this thread, “if you consent to have sex with a healthy person, that also implies consent to sex with someone who has a fatal incurable disease.” Uh…if you can’t see the bright line between those two, you are being willfully ignorant.

    Finally, the OMGZ, what about their privacy argument is BULLSHIT. We’re not talking about job hiring here, we’re talking about sex. If you are willing to have sex with someone, you need to disclose any and all information about your health that can impact your partner. You do not have the right to hide information about deadly diseases that cane be transmitted sexually.

  95. Finally, the OMGZ, what about their privacy argument is BULLSHIT. We’re not talking about job hiring here, we’re talking about sex. If you are willing to have sex with someone, you need to disclose any and all information about your health that can impact your partner. You do not have the right to hide information about deadly diseases that cane be transmitted sexually.

    Again, great theory, but the practice would be problematic. I agree that people have a moral obligation to disclose known risks to their partners, but a legal one brings a lot of dangerous things into play. Say Pat finds out s/he is HIV+. They sit down and think; none of their past sexual partners admitted to being HIV+, none of them are known to be HIV+, and (as is the case for most people) Pat used condoms only some of the time. Clearly, if knowingly having unprotected sex while HIV+ and not saying anything is a crime, a crime has been committed. How do you think the police and prosecutors are likely to handle an investigation? At the very least you’re probably talking about police showing up at the homes/workplaces of Pat’s previous sexual partners and asking detailed medical information, probably aggressively and in public. Theres a good chance people who do not cooperate will have blood subpoenaed (which functionally means either submitting to a medical procedure or being arrested and strapped down to a table while it is performed). I can see quite a few ways police and prosecutors looking to harass a given population could use the pretense of an investigation to cause all sorts of trouble in marginalized communities.

    You can say the privacy argument is bullshit, but a right to privacy exists for a reason. It isn’t because people don’t want to be embarrassed, but because knowledge has traditionally been used by the powerful to oppress. The ability to ferret out knowledge can also be a form of oppression, one that is especially problematic when it is given to a system (police and prosecutors) with a history of abusing authority and using their official power to harass and oppress some of the very groups most impacted by HIV. Beyond that you have to consider all of the peripheral effects of such a new law. Theres a good chance people convicted of such a crime will be classified as “sex offenders” which means restrictions on where they can live and work. Theres also a good chance police will use that potential as a means of coercing people into cooperation (“Want us to tell your boss/girlfriend/boyfriend/the media we’re investigating you as a sex offender? No? Then prove you don’t have HIV…”). There is also a pretty good chance that such a law will lead to someone, somewhere, creating and maintaining a database with the names of individuals known to be HIV+. Furthermore, anyone who has ever been mentioned in an investigation then ends up with their names and the reason for the investigation in official notes and records. Those are just the problems I can foresee, and we all know that police and prosecutors can be mighty creative in how they twist laws into new uses…

  96. William’s doing a great job making all the points I would make, so I’ll just say this: Do you really want a law like this on the books when next a conservative Republican is in office? Can you imagine what Attorney General John Ashcroft and his appointees might have done with a law like this?

  97. I think the biggest problem here is arguing over scenarios.

    1) Knowing HIV+ person says “Hmmm…I think I’ll go infect someone with HIV by having unprotected sex and lying about my HIV status.” Which probably never happens, but which I think we can all agree is evil and should be illegal.

    2) Knowing HIV+ person wants to have sex with a person but is understandably uncomfortable disclosing HIV status, lies about HIV status and has (without coercion) unprotected sex. Bad, and I’d say reckless endangerment.

    3) Knowing HIV+ person wants to have sex with a person but is understandably uncomfortable disclosing HIV status, fails to disclose and has (without coercion) unprotected sex. Bad, but murky.

    4) Knowing HIV+ person is coerced into having “sex” with a person but is understandably uncomfortable disclosing HIV status, fails to disclose or is coerced – by what ever method – into having unprotected sex. IMO, being coerced in any respect means you’ve been sexually assaulted. Period. And you obviously have no duty warn a rapist. I think we can all agree on this one as well.

    5) Unknowing HIV+ person…eh…not responsible. Pretty straightfoward.

    So basically there are two issues: Whether there should be culpability for lying about your HIV status and whether there should be culpability for failure to disclose your HIV status.

    Lying in my view strikes me as similar to rape by fraud, although it doesn’t fall into an of the traditional categories. And where, as here, the consequence of the lie is a severe debilitating illness and potentially death, that should be a crime. (Note: This IMO is similar to a man lying to a woman about a vasectomy since pregnancy is a serious health issue for the woman…but not as someone suggested earlier, the same as a woman lying about birth control since pregnancy doesn’t impact the health and safety of a man.)

    Failure to disclose in my view is more murky. It’s a question of who we think should bear the responsibility for preventing HIV infection. Clearly, those who know they are HIV+ are the least cost avoiders. They have the pertinent information. But disclosing private medical information isn’t generally required of sex partners. It is an invasion of privacy. At the end of the day it comes down to what we think is acceptable and unacceptable risk for an average person to be taking. If I had to make a decision, I probably would criminalize the failure to disclose because it is so dangerous…but it would be at a very low level like criminal negligence.

  98. Piny, I would consider myself culpable if I was a vector, which is why I also get tested regularly and between partners (and you would not believe the number of health promoters I have had to badger into giving me an HIV test because I’m a straight woman). I also am not heavy into the romance and often have a space of years between partners, which means that my test results are likely accurate. It’s the best compromise I can find between never having the kinds of sex I prefer to have and potentially putting myself and partners at risk.

    I don’t think that anyone has the legal right to lie to me if I ask them to verify and disclose their HIV status as a condition to having sex. I think they have a right to not have sex with me if they want to not disclose.

    RD, I do have the type of herpes that results in cold sores on the mouth. I disclose this to partners and abstain from any kind of saliva-spreading activity at the first sign of breakouts; I take a lysine supplement to keep breakouts under control. I think that’s reasonable concern for the safety of others. I am aware that it doesn’t completely mitigate the risk of asymptomatic viral shedding, which is why I tell people so that they can decide for themselves what risk they want to assume.

  99. Holly, I simply cannot agree with what you’re saying here.

    I remember realizing that I needed to get tested after finding out that someone I knew and trusted had lied to me about his habits and lifestyle. Although I got lucky, I’m not going to say that “all’s well that ends well.” It is, but that’s not a moral argument (whether or not this pertains to a legal argument I am really not equipped to say).

    I got tested in Ukraine, where HIV, by all indication, is out of control. Even the people who worked at the clinic – who told me they have to be jaded because it allows them to get through their day – where more sympathetic than you are being here. It was a terrifying experience; it was also a major betrayal. Luckily for him, my ex does not have the virus either – but his habits at the time were more than irresponsible, they were simply scary – and knowing what it’s like to be lied to, I can’t help but think that this is victim-blaming.

    This is all besides the fact that many women don’t have real choices when it comes to whom they can sleep with or how they have sex. In fact, worldwide, they probably comprise the majority. In Ukraine, a woman has the right to refuse sex with her husband – technically – but many Ukrainian men view condoms as an assault on their manhood, and they don’t care if their wife is concerned for her safety. Add to that general societal acceptance of cheating on your wife – and you can probably get the grim picture.

  100. “All of this “no they have to tell me, otherwise I might accidentally sleep with someone who has a disease” crap is the very definition of stigmatization. ”

    No, that has nothing to do with stigma. It has a lot more to do with not wanting to cause others to suffer via diseases. The stigma that effects people with HIV has to do with how they got it and the judgements people make about things like having sex or using drugs.

    Yeah I don’t know what part of the country you live in but around here it is pretty uncommon that people outwardly judge about how someone got the disease. Pretty common that people treat infected people like they are the embodiment of the disease and may spread it to anyone at any time tho, no matter what the actual risk is, which is, you know, ALSO part of stigma. If you don’t see someone as a person but as a disease, if you don’t want to be near them, be friends with them, ever touch them, think you’ll get HIV from sharing the same living space/shower/plate/holding hands, then you are stigmatizing that person, even if you never call them a whore or a druggie. Does this really need to be said?

  102. I mean, is it really honest or morally responsible to assume that someone who doesn’t ask just doesn’t care whether they get dosed with a slow lethal poison? Is that the logical explanation?

    Honest or moral? No, certainly not. Criminal? I’m not so sure. Sometimes bad things happen and the law doesn’t have a reasonable remedy. That doesn’t mean that the people who were negatively impacted deserved it or that the people who took advantage are morally in the clear, but not every unethical or immoral human interaction can be punished with the force of law.

  103. I think a huge part of the problem (not the only problem, but a good part of it) with laws like this is that, in practice, it seems to assume the majority of STI transmissions are intentional. Or at least only the “problematic” ones. The reality is that the majority of STI transmissions happen when people are unaware of their status, and there are many reasons this could be so. Many people do not ever get tested, many people do not get regularly tested. Many people are in monogamous relationships with a partner that they trust. From personal experience in the world of casual sex, anecdotal evidence though it is, I can say that a fair amount of people seem to have this attitude of “if I had something, I’d know it!” There are plenty of reasons for you to not have externally visible symptoms, specifically in the case of HIV you could just be infected with the virus but not actually have it worn your system down so that you have AIDS. In the case of people who actually get tested, you could have managed to pick it up during that window of time that testing does not account for — around here they tell us the test does not include anything you might have picked up in the last six months.
    I think everybody should use more protection, especially when the sex is more “casual.” That is, I have been in long-term relationships where both of us got tested, I went on hormonal BC and we ditched the condoms, and we were trusting each other to not have unprotected sex or indeed sex at all outside of the relationship. This is fine, and if one of us had broken that trust, contracted an STI in the process, and then transmitted it to the other I don’t think the non-cheating, yet infected, partner shares “some of the blame.” I think it is very reasonable to expect your partner to not violate that trust. But I do also want to point out in this scenario that the cheating partner was not actually aware of their STI status. Unprotected sex has its risks, sometimes those can be very great, but that risk is not 100% — there are plenty of people who have had unprotected sex with individuals of unknown STI status and not contracted anything themselves. Anyways, what I am trying to say is that there are plenty of people who do not get tested, have been lax about using protection in the past, etc. and getting into a long-term monogamous relationship does not change these facts. The scenario of someone knowing their positive status but not caring, lying, and/or maliciously infecting others does happen, but the scenario of people not knowing their status at all, never being asked, being misinformed on the topic of STIs overall, etc. is much more common and likely, -and- too easily (and often confused) with the previous scenario.
    How many people actually discuss these things? How many people think that they should? Forget about discussing actual status, how many people actually sit down and discuss protection? How many people are deluded into thinking they don’t have something simply because they don’t think they exhibit any symptoms? How many people start out a relationship having protected sex, then ditch the protection because they’ve been together for years with “no symptoms” as far as they can tell, but no real discussion about STIs, testing, etc.? It’s definitely not your fault if your long-term partner cheats on you and gives you an STI because of it, but I do have to ask if this was necessarily malicious again. Was your partner fully aware of the risk of contracting an STI themselves, let alone giving one to you? Did they think this new partner was fine because they didn’t seem to exhibit any symptoms? Is protection adequetely available, not to mention education about it? I am so priviliged to have received the sex education that I did, so many people receive much worse to nothing at all.
    I am in agreement with those who are saying that there are already laws for the prosecution of those who knowingly put others at risk for their health and/or lives, you just need to prove it. Also in agreement that we should look to the realities of how these laws are put into practice, because so many things can look alright in theory/on paper yet turn out somewhat to completely different when set in motion (and some things just don’t look alright in theory and even worse in practice.)
    I have personally encountered slut-shaming under the guise of “I am just worried about you contracting an STI.” While I would think it is true in theory that the more people I sleep with, the greater my chances of sleeping with a person who has an STI, what makes their supposed concern just a bunch of slut-shaming nonsense is that my chances of contracting anything is much much lessened through safer sex practices. All it takes is one, even if it is somebody I trust. The (much more common, IMHO) person who only has sex within relationships but never gets tested (assuming by choice here, I recognize that not everyone has access to STI testing) because they “just don’t have any symptoms” is much more likely to be spreading something to other people than the person who knows their STI status and uses protection.
    I definitely see how criminalizing non-disclosure is terrible in itself, and a slippery slope besides. Should we criminalize not getting tested then? Even in countries where testing is free there are still issues of access to the testing facilities, proper education about STIs and testing, and so forth. As much as the possible scenario of my boyfriend lying about his STI status to me is scary, and as much as I recognize the difficulty in trying to prosecute him if I were to contract something deadly due to his theoretical lies, I just cannot get behind the idea of special laws to deal with him endangering my life through this particular method. How do I prove that I did ask, and that he knew, and that he lied? What if he honestly just did not know, and I did not ask? What if we went ten years with no problems, he messes up once (or me,) he doesn’t get tested, so he doesn’t know if he’s STI-free or not, is he knowingly endangering my life? What if access to STI testing was limited in some way? Laws like these do cause collateral, and it might cause more than you think.

  104. Of course, it’s no longer as deadly as it used to be: on a course of expensive medications with nasty side effects, you may be able to survive for several decades.

    No, on a course of medications with nasty side effects, you will most likely survive to the end of your natural lifespan. How expensive/available they are depends on where you live, but they should be made less expensive/more available everywhere of course.

  105. RD: You could have just said “part of the world.” The fear of contagion is pretty much universal.

  106. I guess people could try to come up with situations where it could somehow be OK to not divulge the information (perhaps they have knowledge that their viral load is below detection and they always have safe sex, but I don’t think this would cut it).

    And now this is getting ridiculous. If someone’s viral load is below detection and they use safer sex, they are not going to pass on the virus. They just aren’t. I don’t see how that could possibly ever, ever be thought to be “reckless endangerment.” Having safe sex with someone whose viral load is below detection is def less dangerous than unprotected sex with someone of unknown status (even if they think they know they are negative), yet you would criminalize the former and not the latter. Only reason someone would need to know their partners HIV+ status in that situation (unless they want to know cuz they care) would be so they could decide whether or not they want to be bigoted. What else do you think people need to disclose so its not rape? If you sleep with a married person who doesn’t tell you they are married were you raped then too?

  107. This does not criminalize a disease, nor does it criminalize people who suffer from the disease. What it criminalises is *knowingly* telling a lie that then causes harm and potentially eventual death to another human being. If someone doesn’t know their status, or if they are honest about their status, the law would not be involved in any way in a case of transmission. The reason the law was broken here is that this person told a lie to someone who trusted them, and as a result of that lie, this person will suffer extensive harm.

    Boy, I’m glad you live in ideal-world instead of the real world. Unfortunately the laws you advocate actually get applied in the real world.

  108. I agree with William’s been saying, and what Pinko Punko said about “ethical” getting confused with “legal.” In case there’s any confusion here, my comments were about whether it should be ILLEGAL to fail to disclose your medical information. Like Kirsten J says, this is the most “murky” situation, not involving lying or “fraud” of some sort. And no, this is not just about slut-shaming or just about cheating husbands spreading infection; as has been pointed out by several references already, women are likely to bear the brunt of getting blamed as vectors and criminalized, which shouldn’t be surprising given misogyny.

    And look — it’s not like I have never been the victim of this sort of thing either. A lot of people have. I have experiences that I suspect are similar to what Natalia is talking about. But I don’t believe that the solution is that I could go bring legal charges against someone who I trusted and took risks with. In case I need to spell out even more clearly how this is not some sort of bloodless abstract, unsympathetic issue for me, let me just say that I have buried close family members as well as friends due to exactly this kind of thing, and spent many years being incredibly angry about it.

    If we are talking about ethics, of course lying is wrong, of course thoroughly violating someone’s trust is wrong. But there is something deeply disturbing about equating “exposing to risk” with “assault.” The arguments about negligence or gross indifference or reckless endangerment (again, Kristen J’s post) I could also see. But it all also has to be looked at in the context of who will be punished by our grossly misogynist, racist, “plague-carrier”-stigmatizing legal systems, if we are talking about laws.

  109. 4) Knowing HIV+ person is coerced into having “sex” with a person but is understandably uncomfortable disclosing HIV status, fails to disclose or is coerced – by what ever method – into having unprotected sex. IMO, being coerced in any respect means you’ve been sexually assaulted. Period. And you obviously have no duty warn a rapist. I think we can all agree on this one as well.

    Again, ideal-world. Those things may be assault but assault is very difficult to prove, and people here are advocating laws (laws that yes, do already exist in a lot of places and whose affects we can see to some extent). If someone is assaulted in some way, coerced about protection, etc etc., there is usually not a lot of proof. And if there’s evidence of a positive HIV test, and someone’s sex partner then gets infected, that’s taken as malicious or reckless endangerment on the part of the original positive person, often whether there was coercion or not on the part of the previously uninfected person (again think DV/marital rape where the woman cant disclose for fear of serious consequences, or a john who is coercive about protection).

    Also here is where lying can come in too, I don’t think lying to avoid assault/battery, or for reasons of survival, should be criminalized.

    And it is difficult to prove whether or not there was a condom. Some laws dont even care and criminalize it either way, like the CO law I talked about. That, I think, is pretty fucked up.

    Plus people can get arrested even if they did disclose sometimes.

  113. I think that criminalizing non-disclosure is one thing, and it is probably a good thing in the end; though I admit it is problematic and is obviously something that is probably hard to police and enforce. Lines need to be drawn. I heard about a case not too long ago–sadly I can’t remember where this case was but I read about it in the Ottawa Citizen–in which a man was imprisoned for life on two counts of first-degree murder. Not criminal negligence or manslaughter; murder. With intent to kill. That was unfair. I’m not saying the guy did something good by having sex and not disclosing his HIV, but is he a murderer?

  114. Holly, I think we’re also at an impasse in this thread with regards to how much we trust our legal system that’s very similar to the argument within feminism about how white middle-class feminists react to our culture’s predilection towards rape with “prosecute the hell out of people” and feminists from backgrounds with less privileged relationships to law enforcement go “Wait, I thought we were against the prison industrial complex here”.

    I am from a happy-go-lucky background where I sunnily expect that courts are on the side of Good People who Tried To Do What’s Right (something that will probably last exactly until the first time I’m a victim of a sexist crime and try to do something about it). Maybe I’m showing my privilege when I say that I don’t know how you discuss what should be illegal if you assume that courts are corrupt and going to do their job in a harmful way.

  115. Apologies for length- I used to work in this field. “Not a lawyer yet” disclaimer applies.

    About 80 people have been charged in Canada in HIV transmission cases, and there have been a few high-profile convictions, the most recent for first-degree murder. That conviction is likely to be appealed and I have some doubts that the conviction will stand.

    However there have been several convictions for assault and aggravated assault that have been upheld on appeal . The rationale is that failing to disclose HIV+ status to a partner VOIDS consent to have unprotected sex (R v Cuerrier, R v. Williams). When engaging in activities where there is “a significant risk of bodily harm” (which includes unprotected penetrative sex), an HIV+ person has a duty to disclose status – if you don’t disclose, you are in the court’s view obtaining consent to the high-risk activity through fraud, so you can be charged with assault or sexual assault even if your partner remains HIV-. The current thinking is that if you use condoms, you *probably* can’t be charged because there is no longer a sufficiently significant risk of bodily harm. However, one case (R v Mabior) throws that in doubt (in that case, the accused unsuccessfully argued he didn’t think he was infectious because his viral load was undetectable. There were lots of bad facts in that case, including rape charges. The judge said because condoms use is only 80% effective in preventing transmission, there might still be a significant risk and a person could be charged for failing to disclose – but that point wasn’t relevant to the verdict and isn’t binding.) In theory, you could be charged *even if you haven’t been tested positive* – if you suspect you are HIV+, it puts your partner(s)’ consent in issue, and failing to get tested might constitute recklessness.

    What is clearly established in Canada is that if you a) know you are HIV+, b) have unprotected penetrative sex and c) don’t disclose your status (PARTICULARLY if you lie about it), you may be convicted of assault (including aggravated assault and aggravated sexual assault). You could serve up to life in prison. If a complainant dies, you could be charged with murder. A lot of prosecutors have been *very* aggressive in these cases.
    The HIV community is very worried about the impact of these cases for a lot of reasons. There are a lot of unanswered questions around possible criminal liability for activities with a lower risk of transmission (sex with condoms, oral sex, etc.) There are also real worries about failing to disclose status to people other than sex partners (one woman was charged with not disclosing to a medical team assisting with childbirth – the charges were dropped as part of a plea agreement and were in my view baseless since medical professionals basically have to act as if EVERYONE they treat potentially has a communicable infection.) The same case included charges for transmitting HIV to the infant through breastfeeding.

    I think it’s very important to fight HIV stigma, disincentives to testing, etc and to continue to push the message that it’s everyone’s responsibility to protect him or herself. That said, though, I agree with the court that failing to disclose known positive status to your partner (allowing for defenses such as fear of violence, etc.) makes consent suspect – especially if your partner asks your status and you lie. I don’t have a problem with the idea that having sex with someone when you know you’re putting their health at risk and they haven’t knowingly accepted that risk is assault.

  117. I agree with woland’s last paragraph too. Thanks for the examples.

    I am from a happy-go-lucky background where I sunnily expect that courts are on the side of Good People who Tried To Do What’s Right (something that will probably last exactly until the first time I’m a victim of a sexist crime and try to do something about it). Maybe I’m showing my privilege when I say that I don’t know how you discuss what should be illegal if you assume that courts are corrupt and going to do their job in a harmful way.

    I’d suggest that a harm reduction approach might be one practical way to at least START, although certainly not the end of the answer — and the caveat is that you have to look extra hard at what kind of harms may result for the populations and people who are already the MOST harmed and marginalized by our social and legal institutions. You have to dispense with common sense notions that get brought into discussions of “crime” about who the villains and victims are, I think. So for instance, you would THINK from a certain kind of common-sense feminist narrative that laws to protect people from getting infected unawares would be oriented towards saving women from predatory disease-spreading men. And actually that sounds like a really good idea. But our criminal justice system is not oriented that way, and it’s more likely that anyone with HIV will get targeted by these kinds of laws, especially women, that women will be blamed for being the sluts, etc. I mean, look at some of the examples provided above.

    I agree that sometimes it really DOES reduce harm to say, well we need the force of law and the police for this, because we have few alternatives in this world despite the work of groups like INCITE! or Safe Outside the System to create alternatives. But the rest of the time — if you really care about ALL women and not just the most privileged — you have to be very careful about handing additional legal, prosecutorial, enforcement weapons over to the state, because states will use them AGAINST women, against people of color, against the largely poor and marginalized populations who are most at risk for HIV, and so forth. We can’t just pretend that justice will be served or try to make up what we think just laws would be like in an abstract world of Hooray Wonderful Fairness.

  118. I think we’re also at an impasse in this thread with regards to how much we trust our legal system

    I was starting to think a very similar thing in regards to people who seemed to be talking about ideal situations and people who were thinking about potential abuses. I’m not so sure its an impasse, though. I think talking through these kinds of fundamental disagreements can ultimately strengthen the ideas. Idealists rarely consider the reality on the ground, but that doesn’t mean idealism is stupid, it just means pessimists need to point out potential pitfalls so that ideas can become more nuanced and workable.

    Maybe I’m showing my privilege when I say that I don’t know how you discuss what should be illegal if you assume that courts are corrupt and going to do their job in a harmful way.

    I think a pretty good way is to move beyond the “there oughta be a law!” stage of the discussion and start talking about, and engaging with, the objections people raise. It seems that both sides on this thread have tended towards reiterating positions rather than engaging each other’s arguments. The legal system might exist to make society a better place, but it is undoubtedly an imperfect and sometimes abused mechanism. Talking about both sides of that issue, that the legal system sometimes helps and sometimes oppresses, might yield some understanding for both sides of the discussion.

  119. women are likely to bear the brunt of getting blamed as vectors and criminalized

    Does anyone have access to data on conviction (or prosecution) rates among various demographics? The anecdotes I have heard are almost all about men exposing women or other men, though others in this thread have suggested that women bear the brunt of legal penalties. I think it would be instructive to see some actual data on how these laws are being applied. I couldn’t find anything on google, but maybe some legal folks would know where to look?

  120. Only reason someone would need to know their partners HIV+ status in that situation (unless they want to know cuz they care) would be so they could decide whether or not they want to be bigoted.

    I think it’s ridiculous to try and pretend that there’s something “bigoted” about basing who you choose to sleep with on what is best for your own health. I would hazard a guess that most people on this blog would agree that you can refuse to sleep with someone for ANY reason (even if it’s an assholish one) and I definitely would not want to have sex with someone that had a deadly disease (and yes, that includes ones like MDR-TB too — it’s not actually ’cause I hate HIV+ people, it’s ’cause I don’t want to catch an untreatable disease and die.)

    I agree with purpleshoes in this regard; if you have to wait for a law to be absolutely perfect and to have absolutely no potential for abuse, that law is never getting passed in this world. Sure this kind of thing can get used as a bludgeon against oppressed groups but pretty much *everything* is used like that — it’s not the nature of the laws it’s the nature of our society.

  121. MikeF, RD posted some links early on.

    http://www.rhrealitycheck.org/blog/2009/01/26/criminalizing-hiv-transmission-undermining-prevention-and-justice

    http://eliminateaids.blogspot.com/2008/08/who-is-really-affected-by-laws.html

    I suspect the HIV criminalization blog above may have more resources too.

    I think there are some basic disconnects here about what the purpose of criminal law and our justice system is. Does the law really exist to protect people, say to protect women? Or to enforce state power? Or as William pretty much points out, both, and it’s hard to get a full picture without considering both sides of that, and considering which kind of women might fall on either side of that divide.

    When thinking about “a law to penalize HIV non-disclosure” what’s the purpose? Retributive justice, punishing people for their irresponsibility? Compensatory justice, where one HIV+ person somehow “pays back” the mistake of transmission? Some other model of transformative or reparative justice? Is the goal deterrence — do people think that people in unsafe / ambiguous-disclosure sexual situations will actually behave better because of the fear of incarceration and punishment? Do we think that would work? I think answering that kind of fundamental question about what our notions of justice are is rather important in order to get beyond “there oughta be a law!”

    Ethically, I suspect we’re somewhat in agreement. The question is what to do about conflicts of ethics and breakdown in ethical behavior in marginal, crisis situations of various kinds, and the relation of hypothetical “test case” ethics to reality. And then, how to actually apply the law — or other solutions — to effect desired outcomes like, reduced transmission, informed consent and understanding of risk, seropositive people who are unaware or having a hard time dealing with their status understanding how to live with it, etc.

  123. Holly-why can a law’s purpose not be protective? I realize that I’m in the minority in saying that yes, there are people from whom society needs to be protected(though I think I’d differ from conservatives on who those people are) and in saying justice isn’t helpful for a society to give in cases involving things other than material posessions-in those cases justice would, I’d say, be returning the victim to the original state, and possible-in cases where there are harm, justice-causing equal harm to the guilty-isn’t a good idea. so why does that have to be the only purpose of laws? people previously have given what I’d consider to be fairly good standards-i.e. lying about knowledge that you have rather than not knowing. but we are here kind of getting to the point of repeating reasons, rather than asking better questions.

  124. KB — I think it can certainly be protective. I wasn’t offering any concrete answers to those questions I posed. Like I said, I think it’s a complicated question that needs weighing. The only thing I feel fairly clear that I don’t agree with in various models of justice is the “you are bad so you must be punished” model, which is pretty damn right-wing.

  125. so why does that have to be the only purpose of laws?

    Michel Foucault wrote an incredible booked called “Discipline and Punish” which explored the background of how laws and justice evolved in the west. I’m oversimplifying here, but basically he said that power is a fundamentally neutral force and laws exist to increase power. In the west, he argued, power has increasingly been used to control the internal functioning of people rather than their mere behavior, that behaviors are controlled in an attempt to model a certain way of being. Because, as a society, we really only have two forms of punishment, any law is going to have the ultimate effect of exposing more and more people to the social training that exists in our prison system. A law’s purpose might be to protect, but it’s effect will be the same no matter what the underlying crime. If our prison system is designed to “fix” deviance through oppression and violence, then we must consider the possibility that new laws might not necessarily be aimed at the exact kinds of deviance we would like them to be aimed at. A law designed to root out intentionally spreading HIV could very well be used by someone else who is trying to round up, to use but one example, homosexuals.

  126. The only thing I feel fairly clear that I don’t agree with in various models of justice is the “you are bad so you must be punished” model, which is pretty damn right-wing.

    Hopefully this isn’t wandering off-topic, but would you consider legal consequences valid (even if they feel like punishment) as long as there’s another reason for them too? Like, “you are bad so you must be kept away from society for the rest of your natural life and it’s gonna suck” being done in order to actually separate the person from everyone instead of just make their life suck? Or would you want there to be a preventative effect to all the punishments, for example? Like, if the death penalty was shown to actually deter potential murderers (which I think it has been shown not to) would it be okay ’cause it isn’t purely for the gratification of people who want criminals to die?

    I guess (to tie this back in) one of the questions would be whether criminalizing HIV transmission would work to reduce it at all or if it would be *purely* punitive. And then if it *didn’t* prevent transmissions the point would be moot in your legal model, because it would serve purely to punish (it’s not like prosecution can cure the victim, after all — maybe they would be forced to pay for all the treatments or something?) Whether or not criminalization has any non-punitive benefits seems like a valid question, but would finding out require instating laws against HIV transmission anyways and then seeing what effects they have?

    Or could we treat this like an accident in which the other person totals your car; they (or their insurance) have to pay for everything and you can sue for pain and suffering but they don’t get thrown in jail?

  127. I think it’s ridiculous to try and pretend that there’s something “bigoted” about basing who you choose to sleep with on what is best for your own health.

    And you clearly didnt read what I wrote cuz the situation described did not put anyone’s health at risk. Its also not about who you are “allowed” to refuse sex with if it is about non-disclosure. If someone doesn’t tell you they are married, or that they have a kid, whatever, I don’t think that is rape either, even if you would have refused sex if you’d known.

  128. I think part of the issue, especially in cases that have been successfully prosecuted, is that the people convicted were shown to be a clear danger to others. Like the serial rapist who will continue until stopped, people who knowingly infect 5, 10, 18 people will continue to do so until stopped by outside forces. In that case, prosecution is actually very little about punishment and very much about protecting future potential victims. I’m not saying we necessarily need a new law, since it seems like the current laws we have are adequate to protect against serial intentional HIV spreaders, but I’m not quite sure how one can argue that these people completely different than others who purposely attempt to harm or murder others out of anger, hatred, despair or spite.

    Secondly, there seems to be a lot of “slippery slope” hand wringing, however most emperical data seems to go against these what if scenarios. We already have cases against those who maliciously spread HIV/AIDS, and it has not lead to a witch hunt against HIV+ people. I mean, it is very easy to think of laws that can be abused, and, in the US, there are always people who take things to ridiculous extremes, yet that doesn’t necessarily invalidate the law or the need for the law. For example, there have been a rash of teenagers charged with dissemination of child pornography for sending photos of themselves. Is that a problem with having laws against child pornography? no. Should we abolish them? no. Is it a problem of ridiculous enforcement? yes.

    Just a quick fyi, while Foucault did examine the development of disciplinary methods in the West, the man himself was not actually necessarily against against them. He was writing an explanation, not a critique (it’s a big secret that Foucault was not actually a leftist, indeed, by the end of his life he was quite right wing).

  129. sorry to post almost back to back, but please.

    RD
    What?? Are you being willfully dense? There is a *huge* difference between having a kid and having a fatal, sexually transmissible disease. Sex partner lies about kid does not in any WAY affect your health (unless it’s some crazy psycho kid that murders you during the act, or something). But anyways. The point is, someone is taking risks with your health which you are incapable of having any input in. Sure, the risk may be very low. Maybe even infinitesimally low. But the point is, it should be that person’s decision, not the partner’s decision.

    I mean, let’s say, I drive drunk on a regular basis, and am fairly good at it. One night, I have a blood alcohol slightly over the limit, but not by much, and I figure my chances of getting in an accident are close to what they’d be sober. I offer you a ride, and don’t disclose my alcohol status. Chances are, everything would be fine. Also, chances are I’d drop you home and you’d never be the wiser. However, I am taking a risk with your life (and possibly depending on the state, getting you in a sticky legal situation) if I do have an accident or get pulled over. Now, regardless of the objective risk, it may be one you wouldn’t want to take.

    Finally, I know lots of people don’t seem to have forgotten, but HIV/AIDS is a FATAL disease. Take it from me, it is NOT a pleasant way to die (I hope you never have to witness/experience it yourself). The whateverz, I’ll just take drugs responses blow me away with the callousness and total lack of understanding. This is not like a cold, like another, curable STD, or even like Herpes, which last time I checked didn’t kill people.

  130. THE SITUATION DESCRIBED DID NOT PUT ANYONE’S HEALTH AT RISK.

    Also, please don’t make stupid assumptions about me.

    The herpes thing was in response to someone else talking about herpes, that non-disclosure of that is assault in his opinion even tho he prolly has and has prolly passed it on too.

  131. Also, it is not hand-wringing, when I have put up empirical data and facts up while the folks who think it is all about lying cheating spouses have absolutely nothing backing that one up.

  132. And look — it’s not like I have never been the victim of this sort of thing either. A lot of people have. I have experiences that I suspect are similar to what Natalia is talking about.

    Yeah did I mention how I had to go on PEP (Post Exposure Prophlaxis) after a “bad date” this past November? I was assaulted without a condom, not that it was the first time, but it was the first time I was seriously frightened of being infected from it. I know the drugs are not pleasant cuz I’ve been on them omg. I’ve had nightmares long before this and in response to much worse things (screaming nightmares too, its not pleasant), but now I get nightmares sometimes about being positive too.

    I am not being cavalier. I have been correcting people’s misconceptions. It is no longer the 80’s folks, you probably will live out your natural life if you live somewhere you can get access to meds (in NYC, and I know this is not true everywhere, you can get treatment basically no matter what your situation is).

  133. I agree with purpleshoes in this regard; if you have to wait for a law to be absolutely perfect and to have absolutely no potential for abuse, that law is never getting passed in this world. Sure this kind of thing can get used as a bludgeon against oppressed groups but pretty much *everything* is used like that — it’s not the nature of the laws it’s the nature of our society.

    In other words, fuck the oppressed groups, fuck the collateral, I want the right to have unprotected sex whenever I want and not have to worry about infection, even if that is a completely deluded goal to have, whatever, I’ll bludgeon you all with my horrible fascist laws if I have to!

  134. RD, I don’t see how this law is about anyone’s right to have unprotected sex? if anything, I’d say it’s about saying that there are limits to that right. and, while I don’t think that it’s been tested with regards to lying about being married, obtaining consent through fraud is still rape. I think that should apply to lying about being married, though like I said, I don’t think anyone’s sued for that.

  135. Just a quick fyi, while Foucault did examine the development of disciplinary methods in the West, the man himself was not actually necessarily against against them. He was writing an explanation, not a critique (it’s a big secret that Foucault was not actually a leftist, indeed, by the end of his life he was quite right wing).

    I’d advise you to read the last chapter of Discipline and Punish again if you’re unclear as to whether or not what he was writing was a critique. If theres still a lack of clarity you might want to compare the themes in that book to the themes in some of his other work, History of Madness is a good start but seminar transcripts like Abnormal and Psychiatric Power underline that Foucault was making a critique as much as an observation. Yes, Foucault focused on observation and explanation, but that had a lot to do with his belief about discourse and the nature of power. Moreover, Foucault was a communist during the beginning of his career and became increasingly difficult to categorize as time went on. Describing him as “quite right wing” isn’t just inaccurate, its missing the point. Perhaps he’s right wing in comparison to his Maoist beginnings, but thats not really saying much. Also, as far as him being a leftist or not, I’m not really sure what that has to do with anything. Are we only supposed to consider the ideas of people who are ideologically pure?

  136. In other words, fuck the oppressed groups, fuck the collateral, I want the right to have unprotected sex whenever I want and not have to worry about infection, even if that is a completely deluded goal to have, whatever, I’ll bludgeon you all with my horrible fascist laws if I have to!

    Seriously, you’re not even *trying* to correctly characterize opposing arguments anymore. My actual point is that the possibility of unintentional harm from a law is not sufficient reason (in my opinion) to take the law off the table. Yeah, unintended consequences are something we have to keep in mind (and I’m actually grateful to you for bringing some of them up, because a few were things I hadn’t thought of), but they’re not an automatic deal-breaker because if they *were* a deal-breaker we wouldn’t have any laws anymore. And then everyone would be a lot worse off.

    Also, are you *intending* to slut-shame? ‘Cause you are basically blaming my opinions on legal matters on me not being able to keep my legs shut. On a feminist blog.

  137. Isn’t part of the issue the right to have *protected* sex anyways? Part of protecting yourself is knowing whether or not your partner has any transmissible diseases that might require further precautions. If anything I’m arguing for the right to have truly protected sex, not “unprotected sex whenever I want.”

  138. It has nothing to do with keeping your legs shut, that is ridiculous and not even closely related to what I said. It is that you seem to be operating off the assumption that your unprotected sex partners won’t be infected, instead of assuming that they are, and wanting to bludgeon others around with laws so that you can keep pretending that you don’t have to worry about having unprotected sex.

  139. RD: Assuming your argument to be true, why is it that your unilateral assumption that everyone is going to give you HIV supposed to be enshrined in the law while Bagelsan’s unilateral assumption that that no one is going to giver her HIV “just pretend?” Other than, well, your respective experiences which seem to come out to a wash.

  141. It is that you seem to be operating off the assumption that your unprotected sex partners won’t be infected, instead of assuming that they are, and wanting to bludgeon others around with laws so that you can keep pretending that you don’t have to worry about having unprotected sex.

    You are basing your arguments off some pretty wild assumptions about the kind of sex I have…is it really so unthinkable that I could be in favor of something *without* it having immediate benefits for my (slutty and irresponsible) self? I don’t own a car but I still believe that grand theft auto should be prosecutable, for example.

    It’d be awesome if you could address my actual argument, too. How do you reconcile your objections to potential laws about conscious HIV transmission with all the laws that are already being abused? Do you want to get rid of every law that can be enforced unfairly or are laws about sex a special case?

  142. No, i really don’t care what you do but I do care that you want to bludgeon about oppressed group for your own (or others, whatever) really FALSE sense of safety.

  143. You missed the “without having to worry” part, after “unprotected sex whenever you want.” People here want to bludgeon around other (oppressed) people so that they can keep pretending that they dont have to worry.

  144. No, i really don’t care what you do but I do care that you want to bludgeon about oppressed group for your own (or others, whatever) really FALSE sense of safety.

    One of the things that is nice about being a grown up is that you can weigh risks and make rational decisions about your body and conduct. One of the drawbacks to living in a society with other people is that sometimes they’re going to take advantage of one another. If non-disclosure of HIV status is illegal, you aren’t likely to change that. People will still use condoms irregularly, reasonable people will discuss important health matters with partners, most people with HIV will be upfront about it, some small number of people won’t, and an even smaller number will contract HIV. That very small group of will will have a legal remedy, but authorities who are known to be untrustworthy will now have another official tool for harassment.

    That is the balancing act. Its not whining about potential oppression for a false sense of security. It is about making a decision whether the social utility of a very small increase in security outweighs the reality that oppression will increase for a minority group. Reasonable people can disagree over whether or not such a situation is worth it, but accusing those who disagree with you of being self-deluded is no more accurate than if Baglesan accused you of paranoia.

  146. Woland, thank you for that rundown. That example about disclosing to one’s doctor is actually kind of chilling and is the first thing on this thread to actually give me pause.

    RD, I can tell that this is a fraught topic for you and I would honestly appreciate some kind of summary. I personally do think that people should be able to have sex with clear systems in place to be reasonably sure that they aren’t going to contract a life-altering disease. I understand from your recent comments that you are concerned how this might affect you because you presently run the risk of acting as a vector. I agree that that’s a huge freaking concern. But if I, for example, wanted to have the sex with you, I mean, I would ask if you had a history that I should know about, and if you didn’t want to tell me, we could just not have sex, or agree that we were more comfortable taking reasonable barrier-based precautions because no one can be sure. The only thing I think should be prosecutable (or at least the only thing I would drag you to civil court over) would be if we were going to become partners, I asked you to get tested, and you then tested positive and lied about it (instead of saying “I’m just not comfortable not using a barrier method”, even). I’m not trying to hunt people down for a slip-up; I think that the only clear-cut area for enforcement is in cases of active fraud.

  147. and as soon as I clicked “submit” I realized I was being a huge fucking douchebag by taking it personal.’

  148. Oh great, either I’m being cavalier and this doesn’t affect me at all, or this is the most personal of fraught personal issues ever.

    More later, assholes.

  149. RD,

    You know, most people in this world don’t have access to good care. They don’t have access to good dental care, let alone to superior drugs when it comes to HIV.

    I know this discussion is mostly focused on the U.S. – but even so, it’s not as if the U.S. is experiencing the best of times right now. Hell, one of the reasons I moved abroad was not being able to have access to decent insurance. I don’t LIKE my life in Jordan these days – but I know what can happen to me. There are millions of others like me. In the U.S. and elsewhere.

    People have to take health risks seriously. The fear of infection does not automatically an asshole make.

    My grandmother was head of the committee on the most dangerous infectious diseases in Kiev for a number of years. She dealt with TB & HIV. She spends a lot of time talking about the anguish of the people who have passed through her doors. This is the reality for millions. Not all of us live in NYC or have access to decent clinics and support. Now that the crisis has hit, things are going to be even worse.

    A lot of this discussion has dealt with stigmatization. I don’t wish to minimize the levels of stigmatization in North America – but it has been my experience that it is even worse elsewhere. People with HIV end up being defined by the virus. Their humanity is stripped from them. People shudder every time I say that I got tested – like it’s a horrible thing. That alone says a lot.

    But I also think that people like Benaissa contribute to the stigma. I have sympathy for her as a human being – but I have little sympathy for the situation she has found herself in. I think whatever legal representative that has argued that she might go on to repeat her mistake is probably right, especially if it’s true that she told a partner that she was safe health-wise when they decided to stop using condoms.

    I understand that prosecutors probably want to make an example of her – and I don’t know the ins and outs of German law to argue convincingly either way. I think some legislation should be in place/remain in place, specifically in regards to viruses we simply can’t get rid of.

    I noticed that what nobody has mentioned (tell me if I’m wrong) – is that particular breed of person who, if they get sick, decide that they’re going to pass it on to others because if they have it, why shouldn’t everyone else? I know such cases are extremely rare, but I also know that they do occur (grandma dealt with several). I know there are rapists out there, for example, that take glee in it, and people who take the more circumspect route, by lying and insisting on condom-less sex. I don’t think the HIV community needs to take responsibility for such individuals, but I think the law does. Rape in particular is bad enough – now imagine you are now infected. I think in this situation, an increased sentence for the rapist may be appropriate.

  150. Natalia,
    RD didn’t make those assumptions you think she did. She acknowledged that access to health care and lifespan depended on where you live. And the people she was responding to saying they would live out there natural lives that was probably pretty accurate.

  151. “I know there are rapists out there, for example, that take glee in it, and people who take the more circumspect route, by lying and insisting on condom-less sex. I don’t think the HIV community needs to take responsibility for such individuals, but I think the law does. Rape in particular is bad enough – now imagine you are now infected. I think in this situation, an increased sentence for the rapist may be appropriate.”

    Its pretty fucked up to say that to someone who just talked about going on PEP after being raped.

  152. When thinking about “a law to penalize HIV non-disclosure” what’s the purpose? Retributive justice, punishing people for their irresponsibility? Compensatory justice, where one HIV+ person somehow “pays back” the mistake of transmission? Some other model of transformative or reparative justice? Is the goal deterrence — do people think that people in unsafe / ambiguous-disclosure sexual situations will actually behave better because of the fear of incarceration and punishment? Do we think that would work? I think answering that kind of fundamental question about what our notions of justice are is rather important in order to get beyond “there oughta be a law!”

    @Holly: Sure, so why prosecute a murderer who committed their crime in a more common way?

    I mean hello. I can’t believe this even has to be a discussion. I cannot fathom how people can be so unbelievably non-chalant about this disease. OF COURSE someone is obligated to tell a sexual partner if they are positive. Are you kidding me? No. I almost thing you’re joking. That’s absolutely ridiculous.

    I have the right to be a healthy person. Which means that I have a right to make informed decisions about my health. Which means that if someone I am sleeping with willfully omits their status, or lies to me about it, and has unprotected sex with me, they are taking my right to be healthy away from me. That is unacceptable.

  153. “has unprotected sex with me, they are taking my right to be healthy away from me.”

    The way I understand it. You are most at risk if you have unprotected sex with someone else who was just infected, meaning the time when they are least likely to kno or possibly have tested falsely negative. Anytime you have unprotected sex your putting your health at risk. And it doesn’t necessarily have much to do with the other person’s awareness of their status.

  154. Yeah so I guess I forgot to say, B, the whole blood alcohol slightly over the limit very low chances of an accident risk taking is not a perfect analogy, but not really attempted murder or really something you should be locked up for either imo. But also different situation.

    Also Bagelsan asked if I was opposed to any laws used to bludgeon oppressed groups. I am opposed to most, definitely opposed to the war on drugs, war on prostitution, and criminalization of poverty. If that answers your question.

    Assuming your argument to be true, why is it that your unilateral assumption that everyone is going to give you HIV supposed to be enshrined in the law

    This is not my assumption at all, but I think if Bagelsan or whoever is gonna have sex with someone and she cares so strongly about her own and other person’s health, she should prolly assume they are positive and take necessary precautions. And if she or whoever doesn’t wanna do that, whatever not my business but it is not a good excuse to bludgeon oppressed groups so she can pretend she is safe and does not have to think about it. I have come to the conclusion that most of these arguments revolve around people believing their sex partners are NOT gonna be positive and if they are positive everyone involved should know. Which is never, never gonna happen, given how, you know, most transmissions happen without anyone really being aware of their status. And I have not been arguing in favor of any particular laws here.

  155. One of the things that is nice about being a grown up is that you can weigh risks and make rational decisions about your body and conduct.

    Nice dude.

    One of the drawbacks to living in a society with other people is that sometimes they’re going to take advantage of one another. If non-disclosure of HIV status is illegal, you aren’t likely to change that. People will still use condoms irregularly, reasonable people will discuss important health matters with partners, most people with HIV will be upfront about it, some small number of people won’t, and an even smaller number will contract HIV. That very small group of will will have a legal remedy, but authorities who are known to be untrustworthy will now have another official tool for harassment.

    And in addition to all that, many of those small numbers of people who will have contracted HIV from people who were not upfront about it, will have done so under situations that should really not be prosecutable, but will now be able to use the law to lock up their battered wives, people they coerced (about protection or otherwise), and survival prostitutes who THEY weren’t safe with or maybe were coercive with. And those who contracted it from people who were malicious and people with egos, will probably have LESS recourse to prosecute than the other people I just mentioned, because of the way power goes in our society.

    That is the balancing act. Its not whining about potential oppression for a false sense of security. It is about making a decision whether the social utility of a very small increase in security outweighs the reality that oppression will increase for a minority group.

    It is both increasing oppressions of people, AND it is making a decision about blah blah blah.

    Reasonable people can disagree over whether or not such a situation is worth it,

    Where “reasonable people” is a euphemism for privileged people maybe. As it usually is.

    but accusing those who disagree with you of being self-deluded is no more accurate than if Baglesan accused you of paranoia.

    Again, nice.

  157. You know, most people in this world don’t have access to good care. They don’t have access to good dental care, let alone to superior drugs when it comes to HIV.

    In NYC it is definitely easier to get HIV drugs than dental care. Hell I have medicaid, and they still fuck with me about dental care. But, you know, I said more than once the access/expense depends on where you live. But yanno, pretty damn sure the people who are freaking out about living 5, 10, etc. years are Westerners at least, and pretty damn likely to get access to drugs and live out their natural lives.

    It is also not really the issue here. I was just getting annoyed with all the people commenting who don’t seem to know what they are talking about wrt HIV.

    I know this discussion is mostly focused on the U.S. – but even so, it’s not as if the U.S. is experiencing the best of times right now.

    Yes, I am sure you know this sooo much better than me.

    People have to take health risks seriously. The fear of infection does not automatically an asshole make.

    It does not always, but it can. I reserve the right to judge folks who won’t hold hands with HIV+ people for instance.

    A lot of this discussion has dealt with stigmatization. I don’t wish to minimize the levels of stigmatization in North America – but it has been my experience that it is even worse elsewhere. People with HIV end up being defined by the virus. Their humanity is stripped from them. People shudder every time I say that I got tested – like it’s a horrible thing. That alone says a lot.

    The first bit sounds a lot like the US, but judgments/shuddering about getting tested, yeah, that sounds worse. Never run into that attitude here.

    But I also think that people like Benaissa contribute to the stigma. I have sympathy for her as a human being – but I have little sympathy for the situation she has found herself in. I think whatever legal representative that has argued that she might go on to repeat her mistake is probably right, especially if it’s true that she told a partner that she was safe health-wise when they decided to stop using condoms.

    And I think you seem to know a lot about her and what the situation was, cuz I have probably read the same things you have and I am not convinced you are characterizing it right. But it is also a much broader issue than this one case, so I’m not really jumping to argue it in detail right now.

    I noticed that what nobody has mentioned (tell me if I’m wrong) – is that particular breed of person who, if they get sick, decide that they’re going to pass it on to others because if they have it, why shouldn’t everyone else? I know such cases are extremely rare, but I also know that they do occur (grandma dealt with several).

    I think this falls under my category of “ego, not much pressures aside from not caring about the other person.” Which I think I mentioned a couple times, in saying that when you go after these people, you wreak a lot of collateral, more than the kind of convictions you want.

    I know there are rapists out there, for example, that take glee in it, and people who take the more circumspect route, by lying and insisting on condom-less sex. I don’t think the HIV community needs to take responsibility for such individuals, but I think the law does. Rape in particular is bad enough – now imagine you are now infected. I think in this situation, an increased sentence for the rapist may be appropriate.

    Coulda been infected, don’t really know for sure if the PEP got rid of it or if I was not infected from it to begin with. “Imagine”? Come on.

    I might support increased penalties for knowingly HIV+ rapists tho. Actually I think I would support that. That is a much more narrow law, btw, than anything anyone else here has argued for, and more narrow than any of the ones I know about. Of course I don’t think it would be hugely effective, rape may as well be legal most of the time anyway.

  158. Also since some people I think are confused, I am also arguing about laws and what laws should be, and not morality. The entire time I have been arguing about laws and not morality.

    I think most people agree cheating on your spouse is immoral and most people here agree it should not be criminalized. Similarly failing to disclose certain things can be immoral (but, I will stand by this, I DO think there are situations where failing to disclose or even lying is a grey area, and that there are ALSO situations where failing to disclose or lying is not immoral at all given the circumstances). And yes like others have said there are the “perfect storm” “really bad” scenarios that are pretty scary and do sometimes happen, but you can’t ignore the reality of what most of these laws say and how they are enforced. I think people have a tendency to say “fuck the collateral” when something really scares them, even when that something is a lot less likely to be prosecuted under the laws they want (or maybe even happen) than the collateral cases. Especially if the collateral is marginalized, so no one but the marginalized really care.

  160. Oh and I think this is pretty obvious and maybe has been said before, but also pretty hard to prove how transmission happened exactly. People still getting convicted for it tho…

  161. Anyway I think the “legal vs. moral” distinction should be pretty obvious if ppl read what I actually wrote.

    Which is not to say that it is *always* immoral (its not), or *always* clearcut, which I think should also be obvious from what I wrote.

  162. I have the right to be a healthy person.

    The right to treatment, maybe. The right to health? How the hell would that work?

    Does it realy need repeating that most transmissions happen without anyone knowing their status? HIV does not always have to be someone’s fault, and I do not really think that you have the right to things that are really impossible. This is exactly what I was talking about before, this “right” not to have to worry.

  163. Also less risky sex, this is kind of off topic from the course of argument now, but some of these laws criminalize say nondisclosure with oral sex, some nondisclosure with condoms…people are talking like it is only unprotected sex when that is not really true with all these laws. And the transmission doesn’t even always have to happen.

    Take the CO law, or the UK laws snowdrop was talking about.

  164. It’s odd how you guys are so into restricting liberties in terms of banning people from using the word “rape” coloquially, yet think there should be no retribution for a woman wilfully infecting partners with HIV, something far worse than rape as it can result in death and is dishonest and manipulative. I wonder what you’d have said if it were a man infecting women…

  165. It’s odd how you guys are so into restricting liberties in terms of banning people from using the word “rape” coloquially.

    Nobody in the thread you’re talking about suggested legal sanctions for uttering the word “rape” colloquially. You need to learn the difference between legal discussions and ethical discussions.

  166. I don’t think we particularly need any new laws to deal with this situation. As it stands, if you do *something* directed at another person with the intent to kill or cause grave bodily injury to that person, and that *something* constitutes a substantial step toward achieving your goal . . . you’re guilty of attempted murder, whether the *something* in question involves sex or, say, archery. And I’m pretty sure that the law in most states is similarly well developed for negligent acts, battery, fraud, false pretenses and what have you. Taken together, I’d say these laws well capture the possibility of transmitting a disease to another person in a culpable manner.

    That said, I’m utterly mystified by the idea that knowing non-disclosure of a potentially fatal risk shouldn’t be criminal. (Obviously, we’re talking about grave STDs here.)

  167. RD, I don’t think our viewpoints are in competition. I’m not claiming I know certain things “soooo” much better than you – I think it’s important to remember in this discussion that experiences with illness are radically different across the board.

    I also take issue with your notion that privileged Westerners are in no position to be afraid – if anything, the present healthcare system in the States is a cause for all of us to be afraid, regardless of our specific health problems or lack thereof. I’d actually missed the part where you talk about rape – and I apologize for not seeing it before.

    I try to follow the German press pretty closely, and there are claims about Benaissa that are being made right now that paint her as a person who willingly endangered others. I don’t know if they’re going to hold up – but if she really did tell a man that it was OK to not use condoms as everything was perfectly OK health-wise, I think that falls under one German law or another. I think the crucial point here is that they were using condoms previously, and making the decision to stop using them was the point where some conversation should have occurred and did not. Since she knew her status, I don’t know what her excuse could possibly be.

    I agree with you that people take use their supposed paranoia of infection to beat up on others – it’s selfish and ignorant. I don’t think our society should put up with that. I think that if we could only strike some sort of balance between understanding HIV and accepting the fact that it’s a virus which we can’t presently cure, international society would be much better off.

  168. The people we are talking about, probably don’t have to be afraid of, what I specifically said they don’t have to be afraid of, which is getting HIV meds, and living out their lives if they got infected. How you translated that to me not having problems with the healthcare system in the States really boggles my mind.

    But whatever, honestly I don’t think you are worth engaging with at all or any more of my time. Go fuck yourself, seriously.

  169. Knowingly exposing someone to HIV should be a crime. HIV will eventually kill the person who gets it, unless they die of something else first or someone discovers a cure.

    I’m not sure if it’s such a big deal with other STI’s — curable ones aren’t a huge deal, and herpes at least doesn’t kill you — but knowingly passing on HIV due to malice or just due to being to nervous to tell the person is murder and should be treated as such.

  171. I’m reading. I’m surprised you’re telling me to go fuck myself, RD. Why? Because I have articulated the point that most people would rather not get HIV if they can help it – especially considering our worsening healthcare system? I never assumed that you don’t have a problem with our healthcare (this is as strange as your assumption that I take no value from your point of view or that I am in competition as to who knows more).

    I actually find it very strange that we keep focusing on “our” system though – since HIV doesn’t abide by borders. I brought up Ukraine as an example upthread, because it is very much relevant, especially since we face a high degree of traffic: sex tourists from the West vs. slaves “imported” into the West, as well as international marriages – both arranged and the other kind, and so on.

    Not only do people die from disclosing HIV status – there is an entire subcategory of people with HIV for whom infecting someone (or the suspicion of infecting someone) is a death sentence. If you’re a slave, your owner may very well shoot you in the head if he (it’s usually a he) finds out you may be infected – the “merchandise” is damaged, after all, not to mention the fact that you are now a liability to the “business.” This isn’t just limited to sexual slavery – and slavery as whole is at a new peak worldwide.

    I’m sorry that I bristle when New York or another metropolitan center of relative wealth gets brought up – I just see that poorer places where there is less medical options and less education about the topic are either buried in these discussions, or else they are referred to from an outside point of view. When a poor rural or foreign woman, or poor man, has sex with someone from New York (I’m using it as an example since it has been brought up), under any circumstances – one member of that couple is going to have an easier time dealing with infection than another.

    It’s inequality that’s not any specific individual’s fault – that’s just the international system we have in place today. But I think that it must not be forgotten – because some of us go back to NYC and fairly decent clinics, and others are first going to get run out of their hovel of a home if infection is even suspected, and then stand a good chance of dying.

    To give a specific example – in a place like Dubai, people are simply deported if they have HIV or TB. A lot of these people are poorer, and might jump at the chance to get with a wealthier expat – whether for money or in the course of a relationship – and may end up losing their entire livelihood and worse if they are infected. Once again, this isn’t to minimize the stigma of HIV in the West. It’s just that the specific circumstances of infection are different for people worldwide. Nobody is watching out for poor people in these situations, so they have to watch out for themselves, if they are going to make it.

    This isn’t an internal conversation that people in richer nations have, because it affects everyone.

  172. Having unprotected sex without disclosing you have HIV is and ought to be a crime. It not only effectively sentences your partner to death, but hurts public health in general. It is doubtful the partner would have agreed to unprotected sex if they knew they probably would get HIV.

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