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Take the Test and Risk Arrest?

Today (June 27) is National HIV Testing Day and there will be a truckload of press releases encouraging people to get tested for HIV.  Getting tested for HIV is a good thing; knowing one's HIV status is important, both to protect one's own health as well as the health of one's partners.

But no one should get tested without also understanding the legal implications.  HIV criminalization is real, it is happening all over the country and it is on the increase. 

The slogan for National HIV Testing Day is "Take the Test and Take Control".  That slogan rings hollow when it isn't accompanied by information about the legal risks one undertakes when getting tested.  The slogan one hears in some quarters is "Take the Test and Risk Arrest"; the fear of prosecution is discouraging HIV testing.

I believe it is unethical to encourage people to get tested without making sure they also understand the legal ramifications of a positive test result.  In many parts of the country, once someone tests positive, they are told they must sign an "acknowledgement form" noting that they received their positive test result, were appropriately counseled and citing that state's HIV criminalization statute. 

Sometimes that form is given to the person moments after they get the test result, when the person is frequently in a state of semi-shock and in no position to be signing a legal document. Those forms have come back to haunt people in court at a later date, when they are used as proof that the person knew they had HIV and were obligated to disclose. 

Even someone who is diligent about disclosing can be caught up in HIV criminalization prosecutions.  A survey by POZ a few years ago showed that 28% of respondents had a circumstance where they believed they had disclosed but later found out that a sexual partner did not understand them and thought they had not disclosed.  There have been many prosecutions that were revenge cases, a relationship that went bad and someone wanted to get even.

Every person with HIV is one disgruntled ex-partner away from ending up in a courtroom.  The chorus of calls to get tested would be more credible and more honest if they also included tips on how and where to get tested anonymously and how to protect against the risk of HIV criminalization.

It discouraging to see all the AIDS organizations and other institutions cranking out press releases celebrating National HIV Testing Day while remaining silent about how HIV criminalization is ruining lives and locking up people with HIV.

If they really wanted people to get tested, they would work a lot harder at making it safe to do so. 

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Comments on Sean Strub's blog entry "Take the Test and Risk Arrest?"

So is plausible deniability the preferred solution?


The best solution is to get rid of the criminalization statutes so they aren't a deterrence to testing. Short of that, being able to prove one disclosed will help in the event of a prosecution. Getting tested anonymously keeps the information from being held in the government's possession.

"Plausible deniabilty" is hardly a preferred solution. But knowing the risks and how to protect oneself in the event of a prosecution is important. It is hypocritical of those who say they want to get people tested and proclaim how important it is for everyone to know their HIV status to, on the other hand, remain silent or even in support of criminalization statutes.

You can prevent HIV or you can prosecute it. You can't do both.

Thanks for reading the post.


I sero-converted in 2001 and I am only becoming aware of the possibilities of criminalization NOW. I honestly thought that hysteria all died down decades ago!

As to "proving disclosure" That's not realistic. People aren't going to carry around a disclosure notice and ask a potential sex partner to sign it I'm not sure that would even go over well in many marriages! "Here, darling, sign this document so I can prove in court someday that I disclosed my HIV status to you." Hardly.

We may be working away from the mantra of Silence=Death, but we are not free from Silence=Condemnation... which can be almost as bad.

You're right, Sean. Word needs to get out and we need to become more involved. There's work to do. Congratulations on the Sero Project and I wish you continued success.

"(These forms) are used as proof that the person knew they had HIV and are obligated to disclose.". But they DID know they had HIV and they ARE obligated to disclose. Why is it such a difficult concept? I realize disclosure is a real challenge, however, when did the dialogue switch to disclosure being optional? It is never or should never be optional. Period!

Paul: You are right in wondering when disclosure became an option. But in my years of studying this disease and it's criminal prosecution, it is always those who are 1) angry 2) in the closet bi or married and 3) those that don't seem to remember the conversation for whatever reason. Those in the 1category include ex'es trying to get you back after stealing you half blind for the break up and using prosecution as a black mail to leave them alone.Those in the 2category are those men that often attend multiple partner 3 or more parties and decide to take out everyone for their participation in group sex that resulted in an sero-positive lab result. Those in the 3category are those people who looked real good after "last call" was announced at the bar and one or both of you were too "under the influence" to either disclose or to understand the disclosure or to remember the disclosure. Regardless if the initial HIV+ person in the matter (the defendant) will be the one who will be presumed to be guilty simply because most people think HIV+ people should be shunned and quarantined and no one who is HIV+ should have a life, a job, a social or sexual outlet. One of my friends who served 7 years for a blow job he gave a young man (the aggressor) that happened to be the son of the mayor of a small town was only prosecuted because his father the mayor had to present the picture of his 19 year old son of being the victim of a sexual predator. And THAT is what is the worst thing about going to trial and being found guilty. THAT being you are now a SEX OFFENDER of no additional status. So if you survive prison, where sex offenders are almost always known as child molesters and surely to be severely wounded or killed by fellow inmates, then you still must face every job application, every application for a place to live with the question "have you ever been arrested for or prosecuted for a felony...please describe below". That is when life becomes almost unbearable for homosexuals who had no chance of passing on the virus (can't do it with a blow job, period) now must daily see themselves with a future that is very limited. You learn how to cope and you learn how to work the system but where are the same questions for heterosexuals that have given hundreds of women genital warts (HPV) that later resulted in stage four cervical cancer and death. Never once have they been prosecuted for reckless homicide at best. Life isn't perfect but disclosure does not keep you out of jail, does not save your life savings to defend yourself and does not guarantee your trial will not end up in the local newspaper even if you are found not guilty.

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This page contains a single entry by Sean Strub published on June 26, 2012 10:26 PM.

I Need Your Help was the previous entry in this blog.

Sex and Justice Conference is the next entry in this blog.

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