Assault with a deadly weapon: HIV-1, again

While I agree wholeheartedly that someone who is HIV+ is capable of acting with malicious intent with regards to their sexual behaviour. However, what I have read about how the laws are being enforced in cases where HIV is involved, seems, in many cases, pretty sketchy.

I think this article on Bilerico does a good job enumerating the problems with some of the enforcement. People have been incarcerated for things like spitting. People have been found guilty by virtue of not disclosing, even when a condom was used and/or they were undetectable.

I have friends who do HIV prevention work in high-risk communities, and they are seeing the impact of these types of cases being reflected in the rationale people give for not getting tested - you can't fail to disclose if you don't know your status.

I agree that infection should be assault for the same reason as #1. It punishes those who are getting tested, know their status, are being treated, and therefore less infectious than someone who does not know his/her status.

Wouldn't this also increase stigma and reduce testing?

I'm also troubled by how to prove you disclosed. Are they expected to bring informed consent forms to every new relationship?

I think the drunk-driving analogy is good. Driving on the road is a risk. We have laws to reduce that risk. Having unprotected sex is a risk. The law can and should act to reduce that risk.

But I do worry that these cases add to positive stigma. I'm not saying I have a solution, other than better education (for EVERYONE). But it's an issue.

Humans are fucking disgusting creatures.

I can't express how much I agree with this statement.

We try to act like we're civilized because we have such awesome technology, but we're really still primative, barbaric beasts.

People have been found guilty by virtue of not disclosing, even when a condom was used and/or they were undetectable.

Yeah, that's because condoms and/or being undetectable do not eliminate the risk of transmitting infection, only decreases the risk. If they don't inform their partner, their partner is still not making an informed decision about a known risk.

If people at risk don't want to get tested, that makes them irresponsible fuckwits. It's as good of an excuse as "I didn't know it was loaded" because you didn't check.

We try to act like we're civilized because we have such awesome technology, but we're really still primative, barbaric beasts.

Kemanorel, according to Agent Smith in 'The Matrix', we're actually a virus.

Welcome to the club. My mother, an extrovert, is perennially confused by my deep, deep hatred of most of my conspecifics and my general sense that life for people such as we who generally aren't irrational stupid fuckbags is mostly a struggle against the torrent of crap emanating from the rest of the world.

Then again she's an extrovert. Extroverts are a little weird.

There are also places where you are guilty even if you disclose and the person accepts.

Another reason I don't like these laws is that they put the responsibility on one person. There's no excuse to have unprotected sex if you are swinging, having a one night stand, multiple sex partners, etc.

That said, if you are HIV+, having unprotected sex, not disclosing status, etc... well, you're a piece of shit. But is criminalizing it the solution?

(As an aside, there are a few studies that show that apparently using a condom in heterosexual vaginal intercourse practically puts the risk at 0. Unprotected sex with a partner that has been indetectable for at least 6 months was also found in one study to have 0 seroconversions.)

R2, not criminalizing it seems to me to be a case of simply ignoring the fact that disclosing is the responsibility of the person who's got the condition. "Another reason I don't like these laws is that they put the responsibility on one person" wtf? This makes no sense.

I'm just curious if there are similar laws for genital herpes (whether it be HSV-1 or HSV-2). Has that been tried in the legal system? You have to admit that if your partner gives you genital herpes that it will definitely change your live, although admittedly nothing on the order of HIV. I can also imagine a scenario where someone unwittingly infects someone with genital herpes by performing oral sex when they had a fever blister. Actually, come to think of it, my girlfriend in high school had fever blisters. Oh crap, that means I could have asymptomatic genital herpes. (Fortunately, I have been married for 20 years so I don't get to have sex any more so no fear of transmission.)

Totally agree, but also I had a wait, whut? moment. The guy was also charged in military court with adultery?

Assault with deadly weapon: fair enough. Adultery: knock that on the head.

So the major concern with criminalization is that it incentivises against getting tested. We can remove this side effect if we criminalize not informing your partner even if you didn't know you were HIV positive. This switches the incentive around entirely and places a legal obligation on people to know their status if they are sleeping around.

Objections?

@ Ben - No I don't agree. What if you're in a monogomous relationship and you've both tested negative. You unwittingly get infected because your significant other is sleeping around and you are clueless. Down the road, you break up. Then you have it and don't have any reason to even get tested because you thought you were in a monogomous relationship. And then you inadvertently give it to someone else.

You'd have to have a law that requires everyone in the country be tested every 6 months (the time it can take to antibody convert, I think.)

Thats a fair point, Cyn. I'm not sure I agree though. The fact that there is a risk of getting infected in a monogamous relationship just highlights the fact that everyone should be getting tested more often than they probably do. Just because you didn't do anything risky to get infected doesn't mean it isn't entirely your responsibility to know your status.

I'm not strongly opposed to legislate for testing at regular intervals. I would prefer to leave the choice to the individual, as long as they are held responsible for its consequences. Exceptions can be made for incorrect tests, and perhaps very recent infections.

It's as good of an excuse as "I didn't know it was loaded" because you didn't check.

+1

The solution to this problem is to criminalise those who know and don't disclose. And we should stigmatise those who don't get tested. There is no excuse for either of these actions other than selfishness, cowardice, or wilful ignorance.

Every time you have sex you accept responsibility for your actions and the consequences. You have a duty to yourself and your partner(s) to make everything as safe and fun as possible. If you can't handle that, don't have sex.

Getting off is worth more to them than someone elses life.

It's worse even than that. No one told this guy he couldn't get off. They told him he had to inform his partners. Avoiding the inconvenience of disclosure and caution was worth more to him than someone else's life.

I'm just curious if there are similar laws for genital herpes (whether it be HSV-1 or HSV-2). Has that been tried in the legal system?

Good question. The closest I've seen is a case here on Long Island where I live several years ago. A woman sued her ex-partner who infected her with herpes. However, the problem with her case is that he told her he had it but that she couldn't catch it from him, and apparently she just took his word for it.

Since herpes even untreated is not fatal or even all that concerning (unless you are in the later stages of pregnancy) it's not even close to comparable with HIV. There are plenty of doctors and sex education folks out there working to reduce the stigma and fear of herpes that comparisons to STIs that cause serious health issues are not helpful.

As far as people not disclosing. I do worry about the laws being abused to punish people simply for having HIV. However these cases aren't even remotely in that realm, one guys dated someone for 6 years and didn't disclose. Think about how long she may have gone untreated because he didn't tell her. That's incredibly wrong and heartless. Don't get me started about the swinger, that is a community that absolutely REQUIRES people to be honest in order to function.

#9: I meant it puts the responsibility of preventing transmission on the infected person. I'm not saying they shouldn't be responsible for their actions, but EVERYONE should take care of themselves. We know how the virus is transmitted. We know how to prevent it.

That said, someone who maliciously passes the virus should be prosecuted. Or even recklessly, like the swingers.

There is also the problem of enforcement. How do you prove someone has not disclosed?

Another problem is that HIV is singled out. Someone mentioned HSV-2, which is a bit silly. But what about HPV? Cervical cancer kills many women per year. Hepatitis C is also deadly.

Anyway, we're in a science blog. We need evidence! Does criminalizing help reduce transmission? Does it increase or reduce testing? (After a quick Google Scholar check I mostly found commentary, not studies on this.)

"Getting off is worth more to them than someone elses life."
Yeah. People suck. I think the best advice is to assume people will lie when it comes to sex. Or if we want to be nicer to them: "they can get caught in the moment".

"Another problem is that HIV is singled out. Someone mentioned HSV-2, which is a bit silly. But what about HPV? Cervical cancer kills many women per year. Hepatitis C is also deadly."

HIV was singled out because it was being used in arrest and custody circumstances as a deadly weapon (bite lip, spit in jailer's eye).

The law is, after all, a very blunt tool.

It turns out that in many places it was overlap legislation onto the old STD statutes (gonorrhea and syphilis transmission).

Whether or not Hep C, HPV or Herpes 2 is on the criminal hit parade depends on how specific the state legislatures were when the original statutes were drafted, if (as in Oklahoma) they specified the diseases, instead of "a transmittable disease" then there is a gap for the various 'new' scourges.

Regardless, they are all subject to "tort of transmission" a civil action where the mitigating circumstances and contributory behavior, proposed by many posters here, applies.

It would be appropriate to note that while the legal response to HIV in the U.S. has been...well...weird, it is far from draconian.

More and more European nations unabashedly use HIV laws as a means of deporting (killing) inconvenient immigrants from their former colonial holdings.

zzzzzzzzzzzzzzzzz.

Aren't you glad you asked?

So what are you going to do to an HIV+ individual who willingly infects others with the virus? Kill them? Opportunistic infections will do that sooner or later. Arrest them & provide them with medical treatment at taxpayers' expense? Maybe that's what they want. Seems like legal sanctions against this sort of behavior are pretty impotent. Why not infect others when one is going to die of the infection anyway and the worst they can do is throw the law at one for it? Big deal. What's to lose? Even if infecting others with HIV was a capital offense, this would just get the inevitable over & done with quicker.

R2 and darwin's dog - the evidence generally appears to be on the side that legal punishment for any behaviour doesn't do much to prevent that behaviour. This will be no different

Each one of these people in prison will not infect the public I guess. Arguing against punishment is a pretty different topic. In this case I think we can all agree that what these people do is a crime. I would personally prefer it was in the realm of rape (not allowing consent) than assault, because the social stigma is probably a stronger deterrent than the punishment

The law should differentiate between -

1) Deliberate attempts to infect another person with HIV (by any means), which should be punished very strongly.

2) Extremely negligent non-disclosure where perpetrator's status is known or reasonably should have been known, as having unprotected sex or sharing needles, which may be difficult to distinguish from "1)" and is also very serious, but which is a different and somewhat lesser crime. There probably are differentiations made at this level.

3) Non-disclosure where serious attempts were made to protect the victim, and infection did not occur; this does need to be differentiated. Again, I don't deny that this is a serious crime, but a person who did use highly effective prevention measures should be given credit for that.

Unless these different levels of culpability are carefully distinguished, a perverse incentive to avoid testing and responsible behavior is created.

I am sure they are usually differentiated in most jurisdictions, but this is worth noting.

None of the media stories seem to have picked up on the role of denialism in the Gutierrez case. It's mentioned in the post on The Smoking Gun:

http://www.thesmokinggun.com/documents/investigation/air-force-swinger-…

Gutierrez is quoted has having written: âThe research I have done raises several questions on weather or not HIV is even related to AIDs.â

And mentions the finding of two envelopes containing a total of 146 pages of "HIV related research articles." But it appears no journalist has inquired about the content of those articles, or who they were by.

More and more European nations unabashedly use HIV laws as a means of deporting (killing) inconvenient immigrants from their former colonial holdings.

"More and more"? What's your source? I've mostly heard criticism that Western European nations deport HIV positive individuals for other reasons (at least officially) even if they have no access to treatment in their home countries. They may also deport people that intentionally spread HIV.

The European countries that deport based on HIV status include Andorra, Cyprus, the state of Bavaria in Germany, Hungary, Russia, and various former Soviet republics. Unless "more and more" refers to these newly independent countries that have popped up in Eastern Europe, it seems that most European countries haven't recently enacted draconian HIV laws.

At least in the UK, you get tested for HIV (and HTLV and whole lot of other things) every time you give blood, so you're effectively getting your status checked for free, at no inconvenience (or social stigma) to yourself every 16 weeks. And they check out your iron levels for you too. I wonder whether HIV tests should become much more routine - if your doctor takes blood for any reason, take a little more and send it for HIV testing. It wouldn't be mandatory in the sense that you HAD to go and get checked every however many months - it would become more like a check-up, like getting your blood pressure or temperature taken. And then people wouldn't be able to wilfully ignore their HIV status.

The new (CDC, I think?) recommendation is that HIV testing should be an opt-out program, not an opt-in. For everyone. You are told you will be tested, unless you don't want to.

""More and more"? What's your source? I've mostly heard criticism that Western European nations deport HIV positive individuals for other reasons (at least officially) even if they have no access to treatment in their home countries."

I have been reading the case opinions as they come out across the EU in HIV related prosecutions. The EU is smarter than the U.S. in trade restriction, social engineering, immigration etc.. If the heath system is being overwhelmed or Syngenta is technologically behind the eight-ball then GMOs and medically expensive immigrants are "un element dangereux" or whatever.

How did that review manage to miss:

Belgium

Finland

Lithuania

Montserrat

Poland

etc?

Apparently it took EU members claiming no HIV status restrictions at their word.

Many of the countries indicating no immigration restriction on HIV status have a mandatory test as a requirement for access to the heath care system and after a positive result will engineer deportation as an alternative to trumped up prosecution.

This was a demonstrable problem during your cited study. For instance, Switzerland where they were prosecuting lots of HIV pos immigrants for criminal HIV exposure based on hypothetical risk even though there was no identifiable complaining party and the subjects were receiving treatment.

It was basically âHIV positive immigrant? Go home or do a year and a half in prisonâ.

It only looked like they had no HIV immigration restriction. The higher courts and the higher prosecutor's authority told them to abandon the pretense and to stop using the lower court systems to rid themselves of their reluctant neighbors.

Right, I forgot about the vast former colonial holdings of Switzerland and Finland... And "Montserrat"?

I assume you are referring to cases like these from Switzerland. It's likely that immigrants are more easily targeted, but if the *total* number of cases in almost two decades is 39, it does not seem a very effective way of getting rid of inconvenient immigrants.

Sure, the official story is often different from reality. But I'm curious on what basis you judge the response in the US as less draconian than Europe, given that there actually was an official restriction on HIV positive immigrants in the US until a year ago... but OK, short memories...