mandatory HIV disclosure? no thanks

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:

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6 Responses so far.

  1. David says:

    It’s already against the law to NOT disclose your sero-status to a partner in Canada. There are three or four successful cases of someone being charged with a range of charges from “assault causing bodily harm” to “attempted murder” for not disclosing they were poz – so the US really isn’t that far behind the curve in moving to the same footing of requiring disclosure.

  2. Cat Toyooka says:

    This is such an interesting post.

    I saw this a lot when I worked as a director for the world’s first peer based non-profit serving HIV poz youth in San Francisco, BAY Positives.

    Most people don’t realize that they are way more likely to transmit the virus during the time of seroconversion (or becoming HIV positive), and many, many people have a tremendously hard time EVEN dealing with the fact that they received a positive test result. It is often a highly tumultuous time for any person, especially a young adult.

    This is also a time where you continually see individuals quit their jobs to deal with their “new” life status. I can’t tell you how many people had a long and prosperous work life and then totally drop off the employment radar after finding out their positive status. This is also a pivotal time for many youth who had flirting with drinking and drugs in the past. Many youth begin a very long and hard road to drug dependency and abuse as a way to deal with daily life.

    Adding mandatory disclosure on TOP of all the other pressure to anyone who has just learned they are HIV positive is just adding more fuel to the fire. It also really does not account for how to deal with the large population of people (anywhere between 20% to 30%) who simply do not know what their status is.

    Laws are often the least foremost on someone’s mind…especially to the many youth who are struggling with a new HIV diagnosis.

  3. Alexa says:

    I look at it like any other injury you might inflict on someone. If you, as a sex worker or not, act willfully or negligently to injure of kill someone, you’re charged with a crime. Intentionally infecting someone with an infectious disease that, quite possibly, could lead to their death, or at the very least would result in life-long special care, expensive drug regimens, etc., should be treated no differently, IMO.

    So I’ll ask you to justify the disparity. Why do you believe it should be a crime to intentionally hit them with a bat, say, and possibly kill them, yet you don’t feel it should be a crime to do the exact same thing with an infectious disease?

    In the case of the story Dacia and I were discussing, the prostitute knew she had HIV and still continued to have sex with her customers. That is what is referred to as “reckless disregard” for the other person. If we drive with that same reckless disregard (DUI, for example), we are arrested and charged with a crime. Difference?

    I absolutely agree with you that sex workers would likely be unfairly targeted for enforcement of such laws. However, I fail to see how that fact should absolve other people of criminal responsibility for intentionally infecting someone. I also don’t believe sex workers should get a pass to infect other people simply because of the line of work they’re in. If they’re conducting business while infected, they should be prepared to be charged with a higher (or separate) crime as well.

    I also believe that proving knowledge of one’s infection status should be an essential element of any criminal case built against someone. Your point about many people not knowing is accurate, but no one (to my knowledge) has suggested that we make those kinds of cases into criminal cases. I was (and continue to be) referring to those situations where someone knows they’re infected and go on to have sex with someone without telling them (sex worker or otherwise).

  4. Charlie says:

    @Alexa I think that you’re conflating several different things. There’s the malice involved in deliberately trying to infect someone with HIV (comparable to your example of hitting someone with a bat) and there’s not disclosing one’s HIV status, whether out of negligence, shame, fear, or desperation. I don’t think that they’re the same thing, although they could look quite similar to an observer and they could have similar results. Unfortunately, laws like this don’t reflect that- they impose the usual “one size will damn well fit all” approach and I foresee problems with that.

    There’s also the question of what responsibility one has to ask a partner what their HIV status is. The news article linked above doesn’t mention whether this woman’s clients inquired. The responsibility for safer sex and negotiation does not and, IMO, should not rest entirely on someone with an STI. But the way that this law is framed certainly seems to present it that way.

    The news report also doesn’t mention whether this sex worker used condoms, what sexual activities she engaged in, what drugs (if any) she or her clients were using at the time, whether they were using lubricant, or any of the other factors that are known to affect HIV transmission. Instead, by presenting it as an either/or, laws like this vilify people who are HIV-positive without addressing the complexities of how HIV works in the real world.

    Making prostitution a felony when the sex worker is HIV-positive, without recognizing that (for example) one can engage in many, many sexual activities with little or no risk highlights the lack of forethought given to laws like this. Does it make sense for someone providing sensual massage to be considered a felon if they’re HIV-positive? Granted, there’s the question of whether sensual massage is considered prostitution, which varies by jurisdiction, but I have an expectation that an HIV-positive massage provider would find herself in hotter water due to her HIV status if she were arrested. But if we’re going to require her to disclose her HIV status, we might as well require HIV-positive people to disclose to everyone they might have any skin contact with, which is effectively anyone they shake hands with.

    Given that there have been proposals at various times to place all HIV-positive people in quarantine, or to tattoo them so that potential partners will know their HIV status, I find these laws quite chilling. As I said, I agree that there is a moral responsibility to inform people of anything that could affect their health and well-being. And I also don’t think that laws requiring disclosure are what we need unless they address the nuances of how HIV works in the real world.

  5. Alexa says:

    There’s the malice involved in deliberately trying to infect someone with HIV (comparable to your example of hitting someone with a bat) and there’s not disclosing one’s HIV status, whether out of negligence, shame, fear, or desperation.

    I don’t see them as disparate issues, but for the sake of argument, let’s use the analogy of someone randomly pulling the trigger on a weapon in the same room (w/o malice). The weapon discharges, killing the other person. Do we allow the person with the loaded weapon off because the victim should’ve asked the shooter if the gun was loaded? Of course we don’t.

    The responsibility for safer sex and negotiation does not and, IMO, should not rest entirely on someone with an STI.

    I agree, but you make it seem as though practicing safe sex is a panacea, and it isn’t. Safe sex practices can and do fail, so the mere fact that an STD-positive person takes every single precaution possible still does not absolve them from the responsibility of notifying their partner they’re positive. If the shooter above took every possible precaution (i.e., pulling the trigger pointing the gun in the opposite direction of the victim, using blanks, etc.) and the gun fired and a ricochet kills the victim, we still charge the shooter with reckless endangerment and perhaps manslaughter depending on the specific set of circumstances involved.

    I find it interesting the nice little tone of victim-blaming you’ve got going on here. Do you not see it?

    Given that there have been proposals at various times to place all HIV-positive people in quarantine, or to tattoo them so that potential partners will know their HIV status, I find these laws quite chilling.

    Why? They’re nowhere near the same thing. Tattooing someone presents them to everyone as being HIV positive, and would likely lead to systemic discrimination against them. Clearly, that’s intrusive because not everyone is going to be engaging in sexual activity (or, in other words, putting themselves at risk) with them. However, when they intentionally put someone else at risk for contracting a potentially lethal disease, I absolutely think they should face criminal charges if they fail to disclose. Once you cross that threshold and put the other person at known risk for every single other kind of situation you can construct we charge a person with a crime if someone else is injured or killed. I fail to see why the simple fact that HIV has some stigma attached to it should make this the least bit different.

    The news report also doesn’t mention whether this sex worker used condoms, what sexual activities she engaged in, what drugs (if any) she or her clients were using at the time, whether they were using lubricant, or any of the other factors that are known to affect HIV transmission. Instead, by presenting it as an either/or, laws like this vilify people who are HIV-positive without addressing the complexities of how HIV works in the real world.

    Explain why any of that would matter. We do know for a fact that she didn’t tell her customers she was HIV positive. I’m not sure why anything else above and beyond that would have any relevance. If the STD-positive person’s partner was told of the status, *then* s/he could make a positive, informed determination about whether or not they wished to continue the encounter, and could make decisions based on the complexities of the issues you discuss here.

  6. Charlie says:

    Alexa- I don’t really see the validity of the analogy that you’re making. But even so, I don’t think that we need to approach this as adversaries. I fully agree that there is an ethical obligation to giving a potential sexual partner the information they need to make an informed decision. Where we disagree is in our opinions regarding the utility of making it legally mandated.

    I don’t see the value in creating yet another law regulating sexual behavior because they are ALWAYS applied unfairly against women, queers, people of color, and sex workers. I don’t see the value in placing the legal obligation entirely on someone with HIV and not, for example, requiring that everyone have a conversation about safer sex and STI status with potential partners. I don’t think that adding additional stigma to the experience of living with HIV is helpful. I don’t think that a law like this really reflects the experiences of people living with HIV, as Cat described in her comment.

    In a society that denies people the support they need to develop the ability to talk about sex and HIV without shame, creating a law that requires the ability to do so sets people up to fail. It’s another “magic bullet” response and I have yet to see one of those actually do what people imagine it will. I don’t see any reason to believe that this would be any different.

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