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Should the Law Intervene when Someone Lies about his HIV-status?

Posted by GayPatriotWest at 5:38 pm - August 19, 2006.
Filed under: Advocate Watch,Gay America,HIV/AIDS

If it weren’t for this blog, I would long since have cancelled my subscription to The Advocate. I have found its reporting increasingly biased with its coverage of conservatives frequently dishonest. The magazine doesn’t have a single conservative columnist (though it has from time to time included conservative views on its website).

In its December 7, 2004 symposium on the previous month’s elections, it failed to include a single person who had supported the winner in the presidential contest despite the fact that just under one in four gay men and lesbians voted for George W. Bush.

That said, it often provides news of interest to gay people and occasionally has interesting features. Its left-wing rants often provide material for my posts. And sometimes it offers food for thought. In the latest issue, for example, its editorial “Is lying about HIV a crime?” considers an issue particularly important to our community.

The editors believe that prosecuting a sexually promiscuous Australian man “who told partners he was HIV-negative when he knew he wasn’t,” persuading some to “have unprotected sex with him . . ., would set a perilous precedent.” They believe:

it’s wrong to fabricate a story about your HIV status, much less to knowingly expose people to the virus. But it’s also wrong to criminalize people for doing either.

I agree with their contention that “Protecting yourself from HIV is a matter of personal responsibility,” but I’m not sure I share their conclusion.

I have yet to meet a gay man who doesn’t know the risks of unprotected intercourse. And yet some continue to “play unsafe” even with partners about whose status they are uncertain. While they may be taking great risks with their health, it is their responsibility to take precautions, not the government’s.

Several years ago, I chatted with a guy who seemed to solicit my sympathy for the way he became infected. He had picked up a guy at a bar and took him home. As his “date” was preparing to penetrate him, he went to get a condom, but the man said it wasn’t necessary because he was negative. Even though he knew better, my acquaintance allowed his recent acquaintance to penetrate him without protection. He learned later that this man had stopped using protection when he learned he was HIV-positive.

Given that gay men, like my acquaintance, know the risks, I’m not particularly sympathetic to those who don’t take precautions and end up infected. And given my own libertarian inclinations, I am sympathetic to the editors’ opposition to “criminalizing bad boyfriends.” It’s not the government’s job to make us responsible.

While the man who penetrated my acquaintance was evil, deceiving someone so he could engage in unprotected sex, my acquaintance was stupid.

Certain criminal laws, however, do punish those practicing deception. There is a moral difference between someone deceiving a potential partner (by lying about his status) so he can engage in unprotected sex and someone engaging in such sex while maintaining his silence about this status (when his partner doesn’t ask). But should there be a criminal one? Should the law intervene in such cases?

What do you think? Is The Advocate right that it would be wrong to criminalize those who lie about their HIV-status in order to engage in unprotected intercourse? Or should we punish them for this deception?

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29 Comments

  1. I’m all for personal responsibility but I feel very strongly that even libertarian principles include the prohibilition from knowingly hurting someone. I don’t see a difference between a lie and silence either. Did someone find a cure for HIV while I wasn’t looking?

    Even as a heterosexual (and this isn’t just a homosexual issue, obviously) what I hear is that condoms should always be used *even* in long term monogamous relationships because, presumably, we’re supposed to not *ever* live with someone with trust as the basis of the relationship.

    What a crappy way to live.

    The alternative to criminalizing deceptive behavior is to criminalize trust.

    The *deception* is criminal on the face of it. Are people so worried about the risk of criminalizing homosexual behavior that they can’t even recognize that? What if it wasn’t HIV? What if it was just handing you a coral snake and telling you it was a harmless king snake?

    Sure, people have to take responsibility for their own safety but that is separate. Women should take responsibility for not being in unsafe places where they are likely to become victims… but the rapist isn’t off the hook because of the victims poor judgement. Not ever.

    When is the last time you excused a bashing because the victim should have known better than to be in that part of town at that time of night?

    Comment by Synova — August 19, 2006 @ 8:20 pm - August 19, 2006

  2. Lying about your HIV status isn’t like saying you don’t have crabs when you do. This becomes a life threatening situation; life changing at the very least. It would be nice if everyone drove safely, but they don’t and that’s why I’m glad the Highway Patrol is there. I think that people who deceive others in this area, no matter how stupid the others might be, have committed a grave act against another human being and should be held accountable before the law.

    Comment by Jim G — August 20, 2006 @ 12:56 am - August 20, 2006

  3. Synova, in #1, as much as I appreciate your constant voice of reason here, I think you are wrong on this point:

    I’m all for personal responsibility but I feel very strongly that even libertarian principles include the prohibilition from knowingly hurting someone.

    Not exactly. For example, Libertarians are against current laws prohibiting (illegal) drug sales and use. Drugs hurt people and drug dealers know this yet Libertarians support the right of anyone to legally make those choices, regardless of the outcome. Some people choose to do drugs. Some people choose to have unsafe sex.

    Women should take responsibility for not being in unsafe places where they are likely to become victims… but the rapist isn’t off the hook because of the victims poor judgement. Not ever.

    When is the last time you excused a bashing because the victim should have known better than to be in that part of town at that time of night?

    A rape victim, by the nature of the crime, doesn’t have a choice. The same is true of victims of gay bashing.

    and to Jim G.’s example in #2

    It would be nice if everyone drove safely, but they don’t and that’s why I’m glad the Highway Patrol is there

    This is the job of the state (public safety) but not comparable to the choice of one individual (to do drugs or have sex or whatever). Anyone on the road could be a possible victim of a bad driver. You can’t choose who drives next to you. You can choose who you have sex with.

    Comment by John in IL — August 20, 2006 @ 3:29 am - August 20, 2006

  4. If I make a bad choice by leaving my home unlocked when I leave only to find that it has been robbed when I return the robber is still a criminal. If I make a bad choice to trust a sexual partner who says he is HIV negative when he is actually positive that partner is still a liar. The question is should such a lie be criminalized? If I were lied to and the consequences were grave or life threatening I would, at the very least, make every effort to sue the liar.

    Comment by Dave — August 20, 2006 @ 9:54 am - August 20, 2006

  5. #4
    If I make a bad choice by leaving my home unlocked when I leave only to find that it has been robbed when I return the robber is still a criminal

    Your example is similar to the example of the rape victim. I think a better example is smoking cigarettes. I smoke and know the dangers involved and yet I do it anyway (stupid choice). If I get lung cancer, who is to blame? Any libertarian will tell you that I am, not Philip Morris.

    Comment by John in IL — August 20, 2006 @ 11:36 am - August 20, 2006

  6. That’s not a better example. Smoking involves a single person. And the cigarette company gave you a warning label.

    Comment by anon — August 20, 2006 @ 11:48 am - August 20, 2006

  7. Anon,
    Someone grew the tobacco. Many people are involved in making and selling cigarettes.

    To your second point:
    Do you really need a warning label to know that unprotected sex may be hazardous to your health?

    Comment by John in IL — August 20, 2006 @ 12:18 pm - August 20, 2006

  8. While knowingly lying about one’s HIV status is despicable, I am not inclined to criminalize the act. Left untreated gonorrhea and syphilis, can have grave consequences. The dangers have been long known but no one has moved to criminalize lying to your partner for failure to disclose your status with respect to these STDs.

    I have to agree with those of you who look at this as a matter of personal responsibility. We tell women all the time, if you have unprotected sex you can become pregnant. We tell smokers that smoking can cause cancer. We tell everyone that unprotected sex can result in many unwanted diseases. To agree to sex with a person whose status you do not know is stupid.

    Comment by ralph — August 20, 2006 @ 5:16 pm - August 20, 2006

  9. We are all responsible for our own conditions and our actions and the effects that we have on others. If I am dumb enough to accept someone’s word that they are negative and have unprotected sex then I am to blame for becoming infected. But the person who knowingly infected me goes off scott free? I find that incredibly hard to justify. That person, just like myself, is resonsible for the effects that he created. Sex, like driving, is not a sole endeavor (unless your masturbting or driving on a lonely country road). When it involves other people the level of responsibility and accountability rises, as far as I am concerned, automatically.

    Comment by Jim G — August 20, 2006 @ 5:16 pm - August 20, 2006

  10. Dan, good post. I think the Advocate gets it wrong. And so do those who think that actively lying about your HIV status is on a par with simply not telling. There are many situations where people being silent doesn’t translate into guilt –we might have a moral obligation to reveal, but not everyone shares that morality (ie bug chasers).

    I think actively lying to another about a life-endangering issue is worthy of criminalization –and worthy of a severe penalty plus exposure to a civil suit as well. I would also take a step further… in a situation where people truly act as moral agents in society, a person who knowingly condones an HIV+ person having sex with unsuspecting partners is equally immoral and repugnant and but should not be criminally liable.

    Our health care workers, emergency personnel, police, blood banks, schools, employers, insurance agencies and others should be able to hold accountable those who lie about their HIV status… and so should sexual partners.

    And I really don’t think we need metaphors to understand this issue… the smoker or robber or drunk driver or terrorist or other metaphors used elsewhere in the past don’t work. This is a simple issue for the gay community: people who have sex based on a lie about their HIV status should be criminally sanctioned.

    Lie about size; lie about stamina; lie about the number of sexual partners; lie about what sex means to you –those are morally repugnant acts. Lie about HIV status prior to sex that can kill or alter another’s life– criminalize it.

    Comment by Michigan-Matt — August 20, 2006 @ 5:29 pm - August 20, 2006

  11. So, cars.

    Suppose I’m epileptic, I’m not but let’s pretend. Suppose I don’t know that I have epilepsy. Driving has a certain risk even for healthy people but we chose to do it. So I go driving and have an epileptic fit in rush hour traffic on I-40.

    Now suppose I’m epileptic and I know that I’m epileptic. But I really hate the fact that it impacts my life and my freedom so I decide F**k-it, I want to go to town and I’m gonna go to town. I get in my car and have an epileptic fit in rush hour traffic on I-40.

    The other people on the road have accepted a certain amount of risk in exchange for mobility. Is it the same if the person who is driving the car that causes the 20 car pile-up knew they had a medical condition as if they were unaware they had a medical condition?

    Unprotected sex is pretty dumb, really, but if someone accepts a certain amount of risk to do it anyway, is it really the same if their partner *knew* they had HIV or if their partner doesn’t know? Is it different if their partner *knew* but stayed silent as if he *knew* but lied?

    Is the accepted risk of unprotected promiscuous sex with strangers really the same as the accepted risk of unprotected sex with a single partner who claims to be regularly tested and negative and is that really the same as the accepted risk of having unprotected sex with a long term partner that claims to be faithful?

    Smoking. There is a known and accepted risk. No Philip Morris isn’t responsible *except* if Philip Morris has special, non-public, knowledge of the risk. As a libertarian you accept the risk. You even accept a certain risk of the unknown. But if someone in the cigarette producing process spikes the product with something that increases the risk of cancer to 100%, and Philip Morris knows about it and sells it to you anyway, the fact that you foolishly accepted the risk of playing russian roulette with your lungs doesn’t mean that they didn’t just kill you.

    You were idiot enough to accept the risk of one bullet in the revolver, not six.

    Comment by Synova — August 20, 2006 @ 5:41 pm - August 20, 2006

  12. This isn’t something I’ve thought out all the way yet, but how would you criminalize this? Would every transmission of HIV merit an investigation into the partner’s truthfulness? I realize you weren’t talking logistics just the actual criminalization of the act, but I just can’t help wondering how anything like that would be enforced.

    Comment by alli — August 20, 2006 @ 6:00 pm - August 20, 2006

  13. alli, why can’t we rely on reporting to local law enforcement agencies by “aggrieved” partners who have been potentially damaged by the lie, the exposure? That’s how we do it with other crimes.

    You ask if every sexual contact would be investigated… no. But isn’t that a little like comparing the criminalization of lying about HIV status to “further govt intrusion into the bedroom” –like there’s some privacy issue at hand or BigGovt is “out to get gays”? Every sexual contact wouldn’t have to be investigated… nor reported… nor photographed and video taped… nor does criminalizing a lie about HIV status mean that everyone has to submit HIV test results to the local bartender before hooking up. Come on, “investigated”?

    This isn’t BigGovt intruding into our lives. This is about protection and likely tort. Libertarians might offer that we should allow civil suits to handle the issue… but that misses the point many of those who willingly engage in risky sexual behavior and lie about HIV status likely do not have the assets nor the inclination to be twarted from future acts by a healthy civil judgement.

    And do you mean by “logistics” is this a practical matter for enforcement?

    Comment by Michigan-Matt — August 21, 2006 @ 7:22 am - August 21, 2006

  14. I am not full out libertarian, I am more of a very conservative leaning centrist with a lot of libertarian beliefs.

    I have long been told by libertarians that essentially the main philosophy is that everything is legal (not neccessarily moral) so long as it doesn’t harm somebody else.

    I think intentially lying about HIV status violates that principal.

    Although, I do think the person who chooses to have unprotected sex at a time when HIV is around in addition to some other nasty bugs (and for women some cancer causing) is pure stupidity. I think taking anyone’s word on their HIV status is playing with fire. I understand that condoms aren’t as much fun, but HIV is a lot less fun.

    So I do think there maybe should be some liability, although I am not sure I would consider this in the same catagory as a felony. My brain takes me more the way of civil suit-I think there is definitely a case to be made in a civil lawsuit-of course not all HIV positive liars are going to have enough money to make a suit worth it.

    Comment by just me — August 21, 2006 @ 10:55 am - August 21, 2006

  15. I want to thank you all for responding to this post as I had hoped you would. There has been a really great discussion here, with great points made on both sides. It makes my day to know that I can stimulate such a conversation.

    Thanks!

    Comment by GayPatriotWest — August 21, 2006 @ 12:44 pm - August 21, 2006

  16. Absolutely, the law should intervene!!
    If status not revealed then they should be charged with MANSLAUGHTER or MURDER

    Comment by Brandon Paul — August 21, 2006 @ 3:15 pm - August 21, 2006

  17. I agree with a lot of the commenters here that personal responsibility is the key in all these cases. And regardless of whether the partner says he’s HIV negative, if he has sex unprotected frequently, then he can always be in the window period when HIV is not detectable. It’s why guys should always be careful when having sex with a new partner.

    Also, a law like this could easily lead to abuse. Especially if civil suits become part of this mess.

    Comment by Andy — August 21, 2006 @ 4:16 pm - August 21, 2006

  18. Andy writes: “Also, a law like this could easily lead to abuse. Especially if civil suits become part of this mess.”

    Care to think up one plausible scenario where that might –might, mind you– be true? Aren’t there sanctions for people who falsely report alleged criminal activity? Hmmmm.

    Comment by Michigan-Matt — August 21, 2006 @ 4:32 pm - August 21, 2006

  19. In answer to your question in the headline, that answer should be a resounding no, until we make lying a crime in engaging in sex (are your fertile? are you married? are you engaged? Do you have the clap? Do you have herpes? Do you have crabs?). Persuading someone to have un-protected sex? I don’t think so. You’re repsonsible for your own being in the end (pun intended). Of course, that would be in a perfect world where people were actually educated about sexually transmitted diseases. these days though, we’re led by a government that advocates religious faith based abstinence in lieu of real sex education, we’ll still be in trouble for a long time to come

    Comment by Kevin — August 21, 2006 @ 11:16 pm - August 21, 2006

  20. Hey Kevin, why try to take a serious issue like those who lie about their HIV status and turn it into some nonsense about all lying when engaged in sex.

    Hopefully, the lie about HIV status happens before sex begins… I don’t know of a single gay who expects the guy to be fertile (what’s with that?)… but when you ask about STDs or Hepatitis or HIV status and they lie, it should have criminal sanctions… stiff ones, no pun intended.

    Comment by Michigan-Matt — August 22, 2006 @ 10:37 am - August 22, 2006

  21. I’m in a serodiscordant relationship: I’m HIV-, and my partner is HIV+. At the time of contracting HIV my partner was a closeted IT professional living in rural GA who believed another man’s lie, and relied on the sort of assumption one might hear from a kid who never took sex ed. While I’ve never had the heart to outright call him stupid for taking such a risk, I have to wonder what he was thinking, especially in this day and age (he’s been HIV + for three years now).

    I believe it is wrong for a person to lie about his status. I believe it is morally reprehenisble to do so. That being said, I find it hard to believe that a person would not know that it is ideal to engage in unprotected sex only within the confines of a monogamous relationship, and only after both partners have tested HIV- six months to a year after the last exposure. Even then, I’d be reluctant to have unprotected sex myself, because I’m inclined to believe that once a guy gets the feeling of good ole bareback, he’s reluctant to “suit up” for a casual encounter.

    At the most, I believe it would be appropriate to file a civil suit. But to criminalize false disclosure of status to a sex partner? If a guy doesn’t want to sentence himself to a lifetime of medication to keep the virus in check, he needs to suit up everytime.

    Comment by James — August 23, 2006 @ 9:50 am - August 23, 2006

  22. If you consider a one night stand as ‘trade’, the way so many refer to it, then let us consider the law of contract. If you represent your “product” as having particular qualities (HIV neg) and your date reasonably relies on your representation, and you defraud him, then you have breached your contract and he is awarded damages.

    If you intentionally represent something as safe when you know it carries a very real risk of being deadly, such as saying a gun is not loaded when it is, in fact, loaded, not only are you breaching an agreement, you are committing a crime…assault with a deadly weapon, attempted murder (and if he dies, it becomes murder), and possibly some laws relating to the intentional release of dangerous toxins putting others in danger.

    As far as drugs and smoking, the same basic principle is the same. If I tell you I’m selling you cocaine, and you sell me something noxious instead, you have frauded and possibly injured me. Ditto with smoking. Once the dangers of smoking are known and disclosed, caveat emptor, but if you sell cigarettes laced with anthrax, it is a fraud and a crime.

    Comment by David — August 23, 2006 @ 8:32 pm - August 23, 2006

  23. David, isn’t there some legal principle about contributory stupidity limiting the amount of damages

    Comment by ralph — August 25, 2006 @ 11:51 pm - August 25, 2006

  24. How realistic is it to expect that a person who is married or in a long-term (presumably) monogamous relationship be required to use a condom? It isn’t always a matter of someone being reckless or irresponsible. I know at least two women who contracted HIV from their boyfriends; men they had lived with for years. Quite simply, their partner lied to them about the sexual status. This is a criminal act. How does one protect themselves from a deceitful liar? How many of you would like to live out your lives never being able to trust the person closest to you. Be for real.

    Comment by Jesse — August 28, 2006 @ 9:28 pm - August 28, 2006

  25. What if you are in a relationship, you meet someone, you have protected sex for a month, you move in together, and then decide since your monogomous to not use condoms anymore? But one of you is HIV positive and doesn’t want to say anything because it might end it? I know 2 people who had this exact scenario. The problem is they were men and one had 3 children and an ex-wife who cares. The children now are going to lose their father to AIDS and the one that gave it to him insists he didn’t know, however he is on SSI for hiv and the only way to prove it is to subpena SSI. The only way we know he knew he was infected is a friend said something about it. How do you feel about this scenario? Is this not wrong in anyone’s eyes? People don’t care anymore and who do you trust? What about all the bi men having sex with men and are married to women? Should the women who have no clue their husbands are having unprotected sex suffer in the hands of their husbands? Something has to be done to prevent anyone to knowingly spread HIV. It sickens me there are people who do this, but this isn’t the first nor last case. Wait a few years, women will out number men with the virus and most won’t have a clue where it came from. Then what do these women do? Divorce and take care of themselves and their children alone? Think people, really think before you say it’s their own fault. I aslo live in Georgia and look around at your neighbors, trust me, YOU DO NOT KNOW who is lying about their sexuality or their status. Wake up america, this world is much different than when it was when you were growing up.

    Comment by terri — September 10, 2006 @ 1:26 am - September 10, 2006

  26. BTW, Just me, I agree with you and in the case of the person I know, he is after money, therefore has none of his own, as SSI only pays $600 a month to this 25 year old hiv contaminator. How many people will he infect until he is stopped, there is no telling. To deliberately put someone that cares for you in jeapordy is criminal. I am sorry and I hate to judge but in this case it was. Let me go a step further. I had protected sex with someone where the condom came off as he pulled out and I have now 6 months of testing before I can feel okay about being with anyone else. I knew he was hiv positive and we were responsible. I am more concerned about human lives than getting off. I won’t have sex until I know my status so I can inform my next partner and we can make the right decision. I know that is getting paranoid, but since I shave the risk is extremely high and trust me, it is just that easy.

    Comment by terri — September 10, 2006 @ 1:36 am - September 10, 2006

  27. Excuse me if this has already been addressed, however what these laws and prosecutions should be curtailing and addressing is the spread of HIV. Our goal should be reducing HIV infections. These laws and prosecutions I would suggest have a negative effect on such measures. What has consistently worked is safer sex practices – CONDOMS. When an estimated 30% of HIV+ individuals are unaware of there status, disclosure and honesty have little value. The shift of personal responsibility off of the individual may very well impact the testing and treatment of the hidden HIV+ in our society.

    Comment by Derf — March 12, 2007 @ 2:12 pm - March 12, 2007

  28. I suppose I can be considered naive…
    but I’ve found myself in a similar position with out the legalities. My boyfriend (soon to be ex) gave me hiv. He had it through out the relationship and lied about it. Is it wrong to trust the person you’re with? I contemplated going to the authorites… I dont have insurance and I’ve decided that if he wont help me pay for medications I may just try to prosecute him. I dont want to sue him to holy hell… but he gave this to me, he lied to me…
    he knew he was sick and neglected to tell me.

    I do have mixed feelings about going to the authorities. But I do think what he did was wrong. He blew my trust out of the water.

    I know what I wrote was semi-irrelevant…
    but I felt like saying it.

    Comment by Chris J — September 24, 2007 @ 8:52 am - September 24, 2007

  29. i was infected from oral sex. I was lied to when asked if he had any std’s, “oh no im married, curious, lots to lose, drug and disease free”, i sucked him, and got hiv (severe) 3 weeks later very severe symptoms arose.

    How did I feel? terrible, oral sex was supposed to be safe(r). one time, one risk, all it takes, and the guy prolly had lots of virus in his semen.

    He was 30 years older than me, i beleived him, yes i take full responsibiltiy, but if someoenes story makes sense as to wh y they are being sly/etc
    its easier to believe them.

    It was wrong on both of our parts, i am dying from someoene who lived a normal life span, in my early 30s

    nothing was done, his name deleted, called from payphone etc.

    How do i feel? terrible, as i deserve i guess

    -Ron

    Comment by Ron in MA — September 11, 2009 @ 10:05 am - September 11, 2009

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