Having AIDS is not a crime

For the vast majority of people living with HIV, preventing others from becoming infected with the virus is a primary concern. HIV positive individuals are aware of just how difficult it is to live with the illness.

But not all HIV positive people take the precautions that they perhaps should. Some people, angry at their plight or just plain crazy, deliberately or recklessly transmit the virus to others. Some of the individuals concerned have even been criminally charged for their actions. To some it might seem obvious to prosecute someone for recklessly or intentionally infecting another with an ultimately fatal virus. I personally oppose this position for several reasons.

I have been infected with the HIV virus since December 1980. I personally feel it is my duty to tell people up front about it before there is any intimate contact that could cause exposure. I do not, however, think that it relieves the other person from being responsible for his or her own protection. They should know that every person is a possible carrier of HIV, herpes or other STDs. Each person is responsible for his or her own protection.

Criminalizing the status of the person with HIV for not telling and not criminalizing the “negative” person for not inquiring is wrong. It is the same as making the actions of a drug dealer criminal, but not the actions of the person buying drugs. It also becomes a disincentive to getting testing and treatment. More importantly, it is impossible to defend against in court.

Let’s start by using the case of the woman accused of not telling her ex-husband. What was to stop him for saying he was not told simply as a way of getting back at her for cheating or other perceived malfeasance during the marriage? It becomes a he-said-she-said situation. If it is a case of a trick in the bar, or an ex-boyfriend, this becomes a matter of one's word against another. We all know hell has no fury like a scorned queen!

Second, if the “victim" is exposed, it needs to be proven that the accused was definitely the source of the accuser’s HIV. This would involve a range of evidence including sexual history, testing history and scientific evidence in the form of phylogenetics. This compares the DNA of the virus. If they are completely different, then it means that the accuser almost certainly did not acquire HIV from the accused. If the strains are very similar, however, it is possible, though not conclusive, that the accused infected the accusers. Phylogenetics cannot reliably estimate the direction of transmission and therefore it is possible that the accuser infected the accused. Furthermore, the same third party, or different third parties, who shared similar strains of HIV could have infected both.

Then there is the issue of informed consent. Can you really have informed consent after 4,6,8 drinks on a Saturday night? Being under the influence is a legal justification for getting out of contracts. Do people need to start carrying informed consent contracts to the bars at night in case they get laid? The most bizarre aspect of the entire thing is that if an HIV person is raped and does not inform the rapist that they are positive, the rape victim is then guilty of a felony. This is a very real scenario in our prison system.

These laws don’t necessarily provide the public with any additional protection, and it may in fact provide the public with a false sense of security because people may have unprotected sex, presuming their partner must be HIV negative because a criminal offense has been created. Do not confuse moral with legal when it comes to obligations and we should not criminalize HIV status.

David Schauer writes regularly at his own blog.

  • Canadian Supreme Court

This week, The Canadian Supreme Court heard an appeal involving people living with the human immunodeficiency virus (HIV) who recently were acquitted by provincial appeal courts of aggravated assault and sexual assault charges for not disclosing their HIV status. The convictions hinged on their failure to inform their sexual partners that they have HIV.

In the first case, a man was convicted in 2008 of aggravated assault for having sex with six women without disclosing his status, but two years later he was acquitted on appeal. The Manitoba Court of Appeal ruled if an HIV-positive person wears a condom or has a low viral load and, therefore, a low risk of transmitting the virus, having sex does not pose a risk of serious bodily harm. In the second case, a Quebec woman did not disclose her HIV-positive status to her former spouse. In neither case did the “victim” contract AIDS.

In 1997, Florida legislators made it a felony for an HIV-infected person to have “sexual intercourse” without informing the partner of their infected status, adding the virus to a list of established STDs, like gonorrhea, chlamydia and syphilis.

But Florida statutes specifically define sexual intercourse only as vaginal sex between a man and a woman, meaning “the penetration of the female sex organ by the male sex organ.” Therefore, gays and lesbians cannot be charged. The question before the courts and legislatures needs to be decided on legal and not moral grounds.

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