Subscribe to this blog's feedIn many jurisdictions in the United States and worldwide, I could be fined or even incarcerated if I don't disclose my HIV status in those jurisdictions to a sexual partner prior to sexual activity.
I understand that HIV criminalization is intended to protect potential victims. HIV criminalization reinforces stigma, however, which discourages disclosure. HIV education is the best method to achieve the goal of protecting potential victims.
All that said, I admit to being angry after reading a recent article on Q-Notes Online ("Carolinas' multimedia LGBT news source"). They report that a 23-year-old gay disc jockey from Raleigh, North Carolina, broke his probation orders from a previous HIV violation.
He pleaded guilty in August to charges that he didn't disclose his HIV-positive status to three people before having unprotected sex with them. Earlier this month, health officials informed his probation officer that he had contracted a sexually transmitted infection that could have been avoided by using a condom (the article doesn't reveal the infection or how health officials knew it could have been avoided by using a condom).
That was enough evidence to charge him with breaking his probation. If he breaks his probation again, he will face weeks of jail time and possible quarantine in a state prison hospital. For now, he's under house arrest for six months.
The article makes a point of saying that the North Carolina law that he violated applies to many communicable diseases, including hepatitis and tuberculosis. This point is not lost on me—at least the law is inclusive, not singling out HIV as in many other laws.
I believe that cases like this are rare, but this is exactly why HIV criminalization laws exist. I understand that cases like this scare people. I agree that it's beyond belief that this guy after pleading guilty would do it again. His behavior angers me, but I'm not convinced that treating him like a criminal serves a greater good.
I became HIV positive as a result of being lied to by someone I loved. Michael died in 1994 from AIDS-related complications. I've since forgiven him, but it has taken me many years. Was Michael a criminal and was I a victim? Or were we both equal participants in a personal tragedy that no law could ever have protected us from?
I believe that my seroconversion was as much my doing as it was his. Perhaps that makes me a criminal.
Click here to read "Prison Break" by James Wortman in the November 2008 issue of POZ magazine. The article addresses whether HIV criminalization fuels stigma.
Your commentary is one of the most unbiased, balanced and thoughtful commentaries I've seen on this issue thus far. Bravo!
It can't be said often enough: Human sexuality is complicated, and if - and again, that’s a big IF - disclosure laws prevent more harm than they cause, it should only be unlawful for someone with HIV (or any dangerous sexually transmitted pathogen,) to knowingly and intentionally fail to disclose that he or she has that condition to a partner immediately prior to engaging in any sexual activity that carries a reasonable risk of transmission that the partner may become infected. Likewise, if someone does cross the line of acceptable conduct, he or she shouldn’t be punished at all unless they’ve actually transmitted their pathogen.
Last January I posted a suggestion for a “model” penal law:
1. It shall be unlawful for anyone with a sexually transmitted condition, as defined herein, to knowingly and intentionally fail to disclose that he or she has that condition to a partner immediately prior to engaging in any sexual activity that carries a reasonable risk of transmission that the partner may become infected.
2. Notwithstanding the above, if anyone with a sexually communicated condition knowingly and intentionally fails to disclose that he or she has that condition to a partner immediately prior to engaging in any sexual activity, without actually transmitting such disease, such conduct shall not punishable by law.
3. Section 1 shall not apply to anyone engaging in sexual activity for payment or in any commercial establishment or other public venue where sexual activity between consenting adults occurs.
4. The following conditions are sexually communicated conditions:
* BV - Bacterial Vaginosis
* Chlamydia and LGV
* Gonorrhea
* Hepatitis (viral)
* Herpes, Genital
* HPV - Human Papillomavirus Infection
* PID - Pelvic Inflammatory Disease
* Syphilis
* Trichomoniasis
* Human Immunodeficiency Virus