Should HIV non-disclosure be a crime?

[Kurska]

I recently had a very heated argument about this topic on another website and I wanted hear input on it. I understand HIV isn't a strictly gay issue, but as a gay man I wanted to hear gay perspective on it.

Based on my understanding of the law, if you know you are HIV positive and you don't tell your partner that before having sex with them you can be charged with a crime, even if you have a undetectable viral load, even if you use a condom and even if no actual transmission takes place.

Now I was initially supportive of this, but after hearing some arguments against it I'm not so sure. My thinking was that whether a person wants to have sex with someone who is HIV + should always be their choice. If you're positive you need to tell them and let them make the choice themselves. By not telling them you would be withholding life changing information from someone who could be making a life changing decision. I'm not cool with that so I'm hesitantly supportive of the law or at least the logic behind it.

However, the argument I heard seemed to amount to this. Sure lying about your HIV status is wrong, but a HIV + person isn't automatically responsible for another person practicing safe sex. If someone doesn't ask then it is wrong to force someone else to disclose. That you should only be responsible for yourself and getting infected was your fault for not asking and therefore not really caring. All this law does it create more stigma around being HIV + and further segregate them from the rest of society. The point of the law is to try and get the spread of HIV under control but it doesn't do that and actually only encourages people not to get tested (and hence be free of criminal liability) so they can keep having unprotected sex and not disclosing.

I'm not sure I'm 100% okay with that argument, but I can see the logic behind it. I like to think I'm sensitive to the already enormous social stigmatization that comes with being HIV +, but I came out of that argument feeling I was being insensitive to the plight of HIV + people.

I would really like some input on this.

[FreeState]

1. I see the argument as flawed

"Sure lying about your HIV status is wrong, but a HIV + person isn't automatically responsible for another person practicing safe sex. If someone doesn't ask then it is wrong to force someone else to disclose."

My view is that if you know you are positive you have an absolute moral obligation to use a condom every single time. It does not matter if the other partner insists, begs for unprotected sex, or asks for it - it is 100% morally repugnant to not use protection when one of the persons involved knows they are positive.

[Kurska]

3. Understood

But also there is the other question. What if they do use a condom, but don't tell the other person they are positive because they don't ask. My understanding is that is currently a crime. Do you think that should be a crime?

[FreeState]

7. I would have to say yes...

If you know you could potentially pass on a deadly disease you carry it would be immoral in my view to not disclose this information. Putting others at risk*, and non-disclosure, weather they care or not, puts all of us as a community at risk as well as pushing the economic burden of the epidemic further onto the tax payer.

*Wile HIV transition is rare via oral sex it does happened. If a condom brakes the receiving partner needs to know, there are tatements out there for exposure if your have a knowledge doctor that's willing to get the right meds for you (like nurses that prick their fingers etc, a negative person can take these after a condom failure etc).

[MNBrewer]

12. Only if we also criminalize non-disclosure of all other communicable diseases

such as Hep-C, for example. Otherwise, it's just 1980's AIDS era hysteria at work, and not truly public health minded legislation.

[La Lioness Priyanka]

15. i agree that Hep-C should also be on this list. since its communicable and can be fatal

however i dont think herpes, syphilis etc should

[closeupready]

16. Remember the film, "Dressed to Kill", w/Angie Dickinson? {SPOILERS}

She is a sexually frustrated woman whose husband is too busy to satisfy her. So she goes to a museum to admire some artwork and meets a romantic stranger who takes her home and gives her an afternoon delight, lol. She lingers a bit, he dozes off, and she gets dressed, sits at his desk and writes him a thank you note; doesn't like that one, searches for paper to write a better note, and finds a notice in the top drawer from the health department that her new boyfriend tested positive for syphillis. It's not really funny, but this was filmed in 1980 when HIV had not yet emerged, so her panic reaction at reading this news is kind of amusing when the film is seen today.

BTW, you know I'm not being nitpicky or anything, but FWIW, both herpes and syphillis can be (and have been) fatal. Ironically, they are both more communicable than HIV.

[La Lioness Priyanka]

17. its true undiagnosed syphilis can be. never knew herpes could be fatal

[closeupready]

18. Herpes isn't fatal very often, of course, but in children or those with compromised immunity, it can

There was a case I read about a few years back where a child got herpes from one of those rabbis who, IIRC, transmitted it to a boy he was circumcising, and the boy later died during the herpes outbreak.

[w8liftinglady]

33. I have to agree...

I see the after-effects of multi-drug resistant bacteria,hepatitis,and other physically-transmitted diseases.if the true concern is about transmission,then there needs to be a focus on ALL infectious diseases (and there IS,in other countries...HIV is just one of them).
http://www.legislation.gov.uk/uksi/1988/1546/contents/made

[LuvNewcastle]

2. I used to be of the opinion that positive people

should always disclose their status every time they commit sexual acts. I've known a couple of people who slept around and didn't tell their partners and I always thought they were despicable. However, I came to believe that it was childish of me to make the positive partners completely responsible for the disease's spread. Each person, whether pos. or neg., is equally responsible for taking precautions. If I live by some honor code of sex, I am not accepting responsibility for myself. To transfer responsibility to the other person is to give them sole blame if I become infected, and that is just not fair. Most of us do take some risk when we have sex and we should each be honest with ourselves about our own complicity in becoming infected, if it does happen.

[cliffordu]

4. I worked with a guy - a straight guy - who infected almost a dozen women and killed four

at last count - or as far as the MSM reported it.

This was in 1984 or so....

He was a misogynistic ass. And he died in prison, too soon.

He admitted in court that he KNEW he was sick, that he KNEW he was giving these women HIV and didn't give a shit.

he lied to most of them after he KNEW he was sick....

[tammywammy]

6. There was a man in the DFW area convicted of assault with a deadly weapon for purposely infecting

women. He knew he was HIV positive and continued to have unprotected sex.

http://abcnews.go.com/2020/story?id=7696939&page=1#.TuWsR7KIm0s
http://abcnews.go.com/2020/hiv-criminal-busted-women-lied/story?id=8579258#.TuWsq7KIm0s

They were able to prove they had the same strain of HIV as he did. I think knowingly infecting someone is definitely assault.

*tammywammy - bisexual woman

[Fearless]

5. For sex acts? It is certainly unethical not to say...

As for illegal? There are times when extraordinary measures must be taken to protect the public. TB outbreaks are one of them. People are quarantined immediately. I think the same general rule applies, because it can kill you.

For lesser STD's... ones that can't kill you but can't be cured... I think you should still have the right to sue if you can beyond the shadow of a doubt prove they gave it to you.

But, that's the problem for both situations. Can you prove it beyond reasonable doubt that a person with HIV knowingly had unsafe sex with you? Or whatever the STD. I don't know if it's legally provable.

[dkf]

8. You know what really pisses me off? When someone thinks they can do whatever crappy thing

to you because "you are an adult".

Truth is they want something and will do what it takes to get it including lying, hurting people and putting them in harms way.

[jberryhill]

9. What problem would that solve and how?

Criminal laws have no impact on those who would not break them. So the question is whether a purpose is served by locking up those who would.

[justiceischeap]

10. I have an HIV + cousin who does not inform his sex partners

that he is HIV +. He has been positive about 20 years. Think of all the men he has slept with without telling them that he has/may have infected. I think there should be laws for people like him. However, with the way the lawmaking process goes, I would see a law such as this as a way to condemn and imprison homosexuals, just for being homosexual. The laws would not apply equally to those of the heterosexual persuasion... so, I'm torn if there is a way that laws could be created that would be fair and not used as a weapon... kinda like people who are HIV + that use their illness as a weapon.

[La Lioness Priyanka]

23. why would he have to tell them if they are practicing safer sex?

i can see the need if you think he is not practicing safer sex, but why does he have to disclose otherwise?

[justiceischeap]

41. Because, he like some others, aren't practicing safer sex.

That was the point of the entire post. He is purposely infecting the men he sleeps with because he feels his HIV status is none of their business. Granted some blame can be lain at the feet of the men he's sleeping with for not demanding safer sex practices but there are HIV + folks out there that feel passing the "bug" is retribution for getting it in the first place.

[La Lioness Priyanka]

46. sorry, i wasn't clear on that.

[RKP5637]

40. Yep, I see that as a problem too. Often laws are used for discrimination. The problem here,

as I see it, is there are so many variables. Was the HIV + person willingly infecting others, or did they not know? Did the other person (for some reason) want to get infected? ... etc.

For a lack of a better way to say this ... if, the HIV + person is using (in a sense) HIV as a weapon, and it can be proved (somehow), then I think they are guilty and that should be against the law IMO. I think at some level people need to be protected from HIV + predators that infect people for the hell of it ... (gay, straight, etc.) That said, I am 100% sure there are some localities wherein this would be used for great discrimination.

Suppose a person has multiple HIV + partners, because they want to be infected, how does that work? I don't know.

[justiceischeap]

42. I've never understood the whole "bug chasers" gang

it makes no sense to me to actively seek out HIV. I guess, in a way, if you're in a group that's highly susceptible to catching the bug, getting it over with would be an argument for doing so but it still never made sense to me.

[Proud Liberal Dem]

11. Looking at this from a Social Work perspective

I strongly believe in the principle of "informed consent" and, in the context of sexual activity, both partners should, ideally, be open and honest with each other about things like HIV+ diagnosis, STDs, etc. prior to engaging in sexual activity so that both partners can make a decision about whether or not to engage in sexual activity and/or what kind of sexual activity they want to engage in and ensure appropriate protections. At the very least, everybody should consistently be utilizing safe(r) sex practices with new/non-monogamous partners. However, I have mixed feelings about whether or not disclosing HIV+ status prior to engaging in sexual activity should be considered criminal, unless, perhaps, there is provable malicious intent. People should ultimately make sure that they are protecting themselves and others when engaging in any kind of sexual activity and there is a legitimate public health interest in stemming the spread of HIV but I'm not sure that criminal sanctions are the best or most appropriate way to manage it, particularly since the fear of criminal sanctions might inadvertently inhibit communication/disclosure rather than encourage it.

[closeupready]

13. As with everything, it depends, IMO.

I believe if someone HIV- knows what HIV is and how it is transmitted, but sleeps with everyone on the first date without asking about HIV status, or goes to sex parties or clubs and still consents to engage in inserting a bare phallus (or more) in their mouth or rectum (or vagina), then it's a bit like gambling - legal activity which you know is risky, but you enjoy it, you may even enjoy taking sperm in your body and take the risk anyway. If you lose, you can't fairly blame others because you knew the risk - put that way, it seems absurd.

Consider, as an example, the guy who appeared in gay porn and later tested HIV+, but wanted to blame the porn production company because he claimed that he did not know he could do it while wearing condoms. I just can't believe that anyone can be that stupid, and even if some people are, HIV counseling is, I believe, part of the deal when you film such stuff.

Thus, I don't see the crime here, and it would be very difficult for me to convict someone.

Additionally, criminalization drives people away from getting tested, even though studies show that the mere knowledge of one's status does actually change sexual behavior. In other words, getting tested leads to adaptive behavior, whereas criminalization means people who get tested and test positive, who do not have access to regular health care, for example, believe (or know) that 1) they won't get treatment and will die just the same; and 2) run the risk of being isolated as a result of testing HIV+.

But I'm open to other arguments.

[La Lioness Priyanka]

14. i think non-disclosure for having unsafe sex should be a crime

additionally, it should be additive crime if rape occurred.

however, i dont think it should be a crime under all circumstances. if people are practicing safer sex and someone didnt disclose, i think that's fair given the stigma around hiv. i think if unsafe sex happens accidentally (like a condom breaks), it should not be a crime.

but yes, i do think if you are going to have unsafe sex you need to disclose your hiv status as honestly as possible.

[MNBrewer]

19. Makes for a great reason not to get tested

I disagree that non-disclosure should be a crime in the circumstances you describe.

[La Lioness Priyanka]

20. what circumstances do you think it should be a crime?

or do you not think it should be a crime?

i described very limited circumstances under which it is a crime. only if you are having unsafe sex with someone do you need to disclose.

[MNBrewer]

21. I do not think it should be a crime under almost all circumstances

I say almost all, because while I'm unable to come up with a circumstance in which I think it should be criminal not to disclose, I'm open to the idea that some might exist.

[La Lioness Priyanka]

22. as far as this goes, i did describe a very limited circumstance

i also don't think it would affect getting tested because i don't think most people who know they are hiv positive intentionally pass on the virus. the virus is usually passed on by people who dont know their hiv status.

[MNBrewer]

24. There should be at least as much culpability in not asking as in not disclosing

If you don't ask, you don't care.

[La Lioness Priyanka]

25. the culpability is not the same, when one knows one has an communicable disease

in an ideal world, we would all practice safer sex and always get tested before having unsafe sex

however, i do think that sociopathic behavior in general should be punished. endangering someone's health knowingly is one such behavior.

again, as i said, this is not problematic for most situations, since most hiv+ people are not looking to endanger the health and well being of others.

most people do not recklessly endanger the life of others.

[MNBrewer]

26. We at least agree on this

"most hiv+ people are not looking to endanger the health and well being of others".

I disagree regarding culpability.

[La Lioness Priyanka]

28. as i said most people are not sociopathic.

and in honestly, i think this law is more relevant in the heterosexual community than in ours but that's just conjecture on my part.

[MNBrewer]

31. Please note that I'm not saying that people don't have the responsibility of honestly informing

their partners, especially if asked. I don't believe that it should be a crime, and I believe that half the responsibility is with the other person(s) involved.

[La Lioness Priyanka]

32. imagine a scenario where i am married to my husband and want to conceive a baby

so i am having unprotected sex with him. he recently found out that he is hiv+ because he cheated on me. inspite of this knowledge he continued to have unprotected sex with me for a year.

this sort of scenario is why i think knowingly passing on a fatal disease should be punishable by law.

[closeupready]

34. In the case of a married couple, I think the circumstances of the relationship do

mandate a higher level of responsibility than just people randomly having unprotected sex with each other. (Then again, if you are from a culture that believes women aren't people, but mere baby machines and domestic servants, opinions might diverge from that, which is probably kind of where you were going with that.)

[yardwork]

27. We don't require disclosure of any other infectious disease, so why HIV?

If it should be a crime not to disclose HIV status, then shouldn't it be a crime not to disclose having hepatitis, influenza, herpes, warts, gonorrhea, syphilis, a common cold, diarrhea, measles, malaria, chicken pox, tuberculosis, fleas, bedbugs, and so forth?

In the course of American history there have been times when people were quarantined against their will and even locked up to prevent transmission of diseases, notably during epidemics. There's a fascinating issue of individual civil rights vs. population health rights in this question.

[La Lioness Priyanka]

29. i would say that its because hiv is one of the few diseases that

is preventable, communicable and ultimately fatal.

of the disease you listed, we can't really prevent other people from catching a cold from us. most of those diseases are not fatal either.

there are restrictions on TB

i think Hep C maybe the only other comparable disease

[MNBrewer]

30. In order to stigmatize it and punish people who have it.

That's why.

[beyurslf]

35. First, that is not illegal in every state, only in some.

Last edited Tue Dec 13, 2011, 12:11 AM - Edit history (2)

It should be criminal to have unprotected sex with someone if you know you are + and should not matter if you have informed your partner. I know someone here who infected his boyfriend because his boyfriend wanted to go through the disease with him!

However, if you are using protection, disclosure should not be legally required. I am HIV+ and I would never want to be required by law to disclose my status. If I practice safe sex, why should I be required by law to do so? To whom else should I be required to disclose, if the only factor is the possibility of transmission? If I get a paper cut at work, should I disclose to those around me? If I am in an auto accident, should I disclose to those at the scene? The idea that we should always treat any bodily fluid as infected has long been standard practice. The same is true for sex with strangers--you should treat them all as if they are infected. The disease has plenty of stigma. Creating laws to that criminalize non-disclosure only pushes it further into the closet.

[La Lioness Priyanka]

36. i think you mean..

"However, if you are using protection, disclosure should NOT be legally required."

[beyurslf]

37. Yes thank you.

I have corrected it!

[La Lioness Priyanka]

38. also i agree w. you

[uriel1972]

39. I firmly believe that there should be a law/s requiring disclosure any infectious disease more

serious than the common cold. Just because the other person doesn't ask doesn't absolve you of the duty to inform them you are a carrier of a serious disease. Damn the sensitivity to a stigma, you are putting lives at risk. If you don't like it then I'm afraid it's abstinence for you. I just can't justify killing someone because you don't want people to know you are sick.

[La Lioness Priyanka]

44. why would you have to disclose if you are practicing safer sex?

i think that puts too much responsibility on those who know their status and gives people another excuse for not getting tested

i think as long as you are practicing safer sex you dont have to disclose, at least not legally, maybe ethically

[uriel1972]

47. Brokewn condoms for a start. nt.

[La Lioness Priyanka]

48. yes, but it unfairly penalizes someone who knows they have hiv vs someone who carries it but doesnt

know.

i think in unfairly burdens people who know they have the virus, and will discourage testing

[closeupready]

49. Your views are not universally held amongst medical professionals, from what I know.

They may not even be held by a majority of medical professionals; I have no idea how popular they are, and I am not a doctor, but I know that some doctors (some of whom have been treating HIV+ people from the very beginning of the epidemic) advise to disclose in fairly specific circumstances as opposed to the idea that one should walk around with a kind of brand or tattoo, for a number of reasons, one of which is that it can be damaging information that can be used to stigmatize those who are positive, and in light of the fact that after roughly 25 or so years of studies, findings show that some activities are very, very unlikely to transmit the virus, being so open doesn't always make sense.

Everyone (you and me) is certainly entitled to an opinion, but as a society, we use informed medical opinion to help draft useful and effective public policy. Not saying this in reference to you per se, but bigotry and fear should have no place in that process.

[uriel1972]

50. I'm not talking about branding people,

I'm talking about telling people you are trying to have sex with. Morally and ethically the idea that one should withhold potentially life threatening information just so you can get laid is in my opinion unsound to say the least.

[La Lioness Priyanka]

52. yes, but ethicality and legality are different issues

for instance i think its unethical to have sex w. some sig younger than yourself. however legally about the age of 18 you can have sex with anyone (assuming consent).

legality usually sets a lower boundary to ethics/morality not an upper boundary

[uriel1972]

53. OK we can probably get away with no new laws

and just prosecute people who knowingly infect other people through lying by omission with rape and murder/attempted murder. fine by me. It's an issue of consent and life and death.

Life hands us a bunch of shitty choices and if anyone is HIV+ I sympathise, I really do, but if you knowingly endanger someones life for the cause of a good time I will condemn you with every fibre of my being. Sorry.

[closeupready]

54. Well I do hope you protect your health, use condoms and always practice safer sex.

Last edited Wed Dec 14, 2011, 04:54 AM - Edit history (1)

I have had two best friends, and numerous other friends, die, and it sucks. I think about them all the time.

[uriel1972]

56. I would if I get the oppurtunity

/sigh. I just don't want people to die when they don't have to, that's all, that's what drives me. Warm thoughts back.

[closeupready]

55. Well, you really are talking about one side of the same coin I'm talking about.

nt

[Lyric]

43. My worry is that laws like that lead to a decreased number of people getting tested.

After all, it's only a crime if you KNOW that you're positive. If you avoid the test (and thus, the knowledge of your status) you avoid any potential legal consequences. It's a variation of the backfire effect, a known psychological phenomenon where people deliberately avoid knowledge that might contradict what they WANT to believe, think, or do and cause them discomfort or guilt. We see it all the time, politically--think of the Freepers that choose to only watch Faux because watching anything else might expose them to a truth that they don't want to deal with. The same is true for behaviors like sex. We are all human beings with the same flaws and failings.

Decreased testing is dangerous. We should think very, very carefully before passing laws that might lead people to avoid getting tested.

[ZombieHorde]

45. I don't know. Interesting debate. nt

[Kurska]

51. Very interesting

That is why I posted this thread. That and I'm big on consensus building and there is clearly no consensus on this issue in the gay community, I hope to be doing my part.