A few days ago, I was following a Twitter conversation between @AlexaRPD and @audaciaray about the issue of mandatory disclosure of HIV status to sexual partners. In part, it was sparked by a news story about a sex worker whose arrest for prostitution became a felony rather than a misdemeanor because she’s HIV positive. And these two incredibly intelligent folks were on opposite sides of the question of whether disclosing HIV status should be mandatory (for people in general, not just sex workers).
As is often the case, I can see both sides of this issue. On the one hand, I absolutely agree that if you have a health condition that you could pass along to someone else, you have a moral responsibility to inform people who might be affected so they can choose what they want to do. I think that’s what people should do about non-sexually transmitted infections, too. I get really annoyed by the tendency that many people have to put themselves in situations in which they could easily spread disease. But then, my partner is a public health nurse and I’ve heard lots of stories about how clueless or thoughtless people can be when it comes to keeping illness in check.
On the other hand, I also recognize that when it comes to regulating sex, the impact is consistently heavier on certain communities, especially queers, people of color, the poor, sex workers, transfolks. I have very little reason to believe that a law regulating STI or HIV disclosure would be applied fairly. Of course, one might argue that such an argument could also be made with respect to laws around murder or drug possession, which are also often applied unfairly and yet, we don’t use that as a reason to not have those laws. So perhaps that fear isn’t enough reason to refrain from regulating STI disclosure.
But there are other reasons, too. There are already a lot of barriers to STI testing. In fact, I’ve heard from quite a number of people who have said that one of the reasons they don’t get tested is that they are afraid to find out what their STI status is. Our culture attaches huge amounts of shame to STIs and if we add the possibility of criminal charges to that, it seems to me that it will likely decrease the number of people who will get tested.
There’s also the question of whether mandatory HIV disclosure could create a false sense of security. After all, lots of people are HIV-positive and don’t know it. So unless we’re going to require testing along with mandatory disclosure, I would expect that a fair number of people would figure “s/he didn’t say anything about HIV so I’m safe,” even though that’s not necessarily true.
Along with that, unless you have some signed paperwork, there’s nothing keeping someone from consenting to sex and claiming afterward that disclosure requirements hadn’t been met. Given how easy it is to make a decision during the heat of the moment that you later regret (and EVERYBODY does it sometimes), I can see that getting really, really messy.
When it comes down to it, the best things we can all do to keep ourselves as safe as we can is to talk about sexually transmitted infections with our partners or potential partners AND to follow safer sex guidelines. In my opinion, if your relationship with someone is such that you need a law to make sure that your partner tells you their HIV or STI status, that’s probably a good reason to be using condoms and gloves for sex. And don’t forget the lube!
The last thing that I think we need is to get the lawyers involved in our sex lives. It wouldn’t be nearly as funny as this video makes it look: