Towleroad has an interesting piece up about the criminalization of HIV, or rather, laws that say that if you have intercourse, know you’re HIV+ and don’t divulge it, it’s a crime. The writer, who teaches at Brooklyn Law School, makes some interesting points about how the law currently doesn’t have a lot of nuance to it:
Despite a spate of good news for the eradication of HIV — the FDA’s approval of Truvada to prevent its transmission, the Supreme Court decision upholding the Affordable Care Act and thus retaining the ACA’s great benefits for those living with HIV, and the lifting of the HIV/AIDS travel ban that allowed the International AIDS Conference to take place in Washington, D.C. last month — there are still countless jurisdictions in which it is essentially a crime to be a sexually active HIV-positive man. In some states, individuals with HIV can be convicted of crimes of varying degrees, with penalties exceeding 10 or 20 years in jail, if they have sex without first disclosing their HIV status. And that is true even if they practice safe sex, are taking antiretroviral medications, have undetectable viral loads, and/or are on the receptive side of the sexual encounter, four factors that when combined make it almost impossible to transmit the virus.
If prosecutors can prove that transmission is likely merely by offering evidence that anal sex possibly transmits HIV, then two things happen. First, it is factually incorrect. Anal sex can transmit HIV, but all incidents of anal sex aren’t fungible. Second, it is legally insufficient. The notion that a “likelihood” threshold could be satisfied by the mere possibility that HIV could be transmitted both actually lowers the threshold and eviscerates the requirement that guilt be proven beyond a reasonable doubt.
Think about it: If all prosecutors had to do was prove is that anal sex can possibly transmit HIV, then no doubt could be reasonable. After all, “[a]nything is possible; there are no metaphysical certainties accessible to human reason; but a merely metaphysical doubt . . . is not a reasonable doubt for the purposes of the criminal law.” This principle does not only exclude the fanciful (“it is possible that I will burst into flames”), but also the realistic, yet remote.
What do you think: Should HIV positive people divulge their status before having sex? Should it depend on what kind of sex, or whether protection is used? Should it depends on the viral load of the HIV positive person? And is a very very small risk of something really really huge acceptable?
My gut reaction is that I’d want to know, regardless. But the writer makes a lot of good points – namely, that my desire to know is based on, perhaps, some unfounded fears of the ease of transmission.
Oh and PS, while I don’t really get into sharing information of this nature on the blog, the first time I used a condom it broke, and we had no idea that it broke. So the condom argument is irrelevant. Assume there is no condom, then decide if it’s still okay not to divulge.
I’m actually a bit annoyed that the writer failed to mention this, the fact that condoms break. I actually hadn’t even thought of it until someone else on Twitter mentioned it, and it’s a bit of a game-changer to his argument. I worry sometimes that we all – and I mean all of us – downplay the severity of AIDS in our own little way, whether we do it by ignoring the plague completely, or by subtly suggesting it’s no big deal.