Finally, Some Common Sense About HIV/AIDS
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20 April 2010 | 26 Comments
The NY Times has an essay in it today on current attitudes about HIV in the US. Here are a few quotes from it (emphasis mine)…
Most states enacted punitive legislation back in the hysterical old days of AIDS, a period lasting roughly from 1981, when the first reports of the syndrome were published, to 1996, when combination drug “cocktails” proved remarkably effective against H.I.V. Back then, transmitting the disease to an unknowing sexual partner was considered tantamount to murder.
These statutes are still on the books, but the science behind them has changed radically. People do still die of AIDS in the United States — the death rate, after plummeting in the late 1990s, has remained constant at about 16,000 per year. But for a person infected in 2009 to die of AIDS in the future would probably require a substantial amount of bad judgment or bad luck: the medications, if properly prescribed and properly taken, appear almost infallible.
Were it a matter of science alone, all those AIDS statutes could be rescinded tomorrow. But the science was only a small part of the panic that created them. And effective treatment has not altered the rest of that potent emotional brew: the virus still sows terror, uncertainty, shame and endless complications, whether the infection is concealed or revealed.
… And so whose fault is a new H.I.V. infection, really? Is it mine, for giving it to you, or is it yours, for being stupid and cavalier enough to get it?
It’s pretty incredible something so honest and accurate is being published in what’s arguably the most prestigious paper in the US. Mind you it’s just the first step in a very long process of decriminalizing HIV, but it’s good to see the first signs of the discussion.
[That said, there are times when I think transmission of HIV should be considered when sentencing for other crimes. The 35 year old poz guy who infected a kid by having sex with him 55 times between the ages of 12 and 16 is a good example of what I mean. The HIV infection should be considered as a special circumstance when sentencing him on statutory rape. But the HIV transmission itself usually shouldn’t be a crime. And when neg person dodges the bullet and there’s no infection, just unprotected sex, then that should definitely never be a crime, IMO…]
People need to think differently about HIV now. It’s 14 years since ARVs came on the scene. I know some of us went through truly traumatic experiences watching loved ones die of AIDS, but it’s just not like that any more.
And just to reiterate what I’ve said before… Unless you’re just incredibly unlucky, there’s no reason you can’t live a long life with HIV. But to live a long life you need to get tested and take your meds when it’s time to take them. That means you should get tested at least every year. Never let more than 2 years pass without an HIV test. If you’re nervous about getting tested – just relax. Chances are very good you’ll be OK if you test poz – as long as you haven’t waited too long…
it’s good to see some level-headed reasoning!
People should look too at the articles describing what an awful thing it is to be on HIV medications and how it can shorten your life and significantly reduce your quality of life. IMO . . .
This is good news, and something I’ve been pretty vocal about as well. People too reactively want to play the blame game, but that’s not going to get it done. See http://www.mosaicinitiative.org for some of our comments on this.
It is true that people can dodge most of the “dangerous” and life threatening affects of HIV if they test regularly and get treated. But one has to take into account that the more active/stressful your lifestyle then the more likely the side-effects will be pronounced and harsh. It has been found out that most poz are now living almost as long as neg people. Provided they take thier meds faithfully and live a healthier lifestyle.
I did not get tested – came down with common winter flu and the progressed into pneumonia and almost died in the process. But for the wonders of medical science I am here. Been a rough 2 years but I did find a wonderful network of poz and poz-friendly people who helped me through the rough spots.
HIV now just a managable disease like high blood pressure?? Someone needs to back check thier facts before leaping into pozhood.. High blood pressure does not make you loose your health/life insurance or home or job or love one just because you have it..
Not a fun or a barrel of monkeys. I guess the phrase “look before you leap” comes to mind.
Obviously, I agree with you on the point that people make their own choices and with such choices, come pretty serious risks. You note that AIDS is not common today, which is true. However, there is also a lot of evidence out there regarding the side effects of these drugs, and as those with HIV age, their drugs begin to counteract with other drugs (and cause serious health problems in the process).
It’s for that reason that I’m reluctant to get rid of a tortious duty on the part of the poz person to disclose his status. I don’t think it’s an invasion of privacy to require disclosure, and once the person discloses his status, he should be absolved of liability. That is the current state of the law, minus a few states which impose criminal liability on ANY poz person engaging in sex with a neg person (those statutes would be invalidated because their overly broad).
There isn’t much of a move to decriminalize HIV though, and there will not be one because the state still has a compelling interest to protect the health and safety of its citizens.
If I have to disclosed my poz status, then mandatory testing should be made into law as well. How do I know that you are really neg and are not in that window of seroconversion from a previous poz encounter??? Without testing then I have no defense in the “disclosure states”, if you convert to poz after we get together. Without genotyping testing, there is no sure fire way, who begat whos pozing.
@rawTop- sound words.. 🙂
Obviously you didn’t read the laws. It’s only against the law if you knowingly infect someone with HIV.
I do think it’s a crime to infect an unknowing sexual partner with HIV and I don’t care if having HIV nowadays it’s not the death sentence it used to be, yeah, good for them, but I don’t wanna have HIV, not now not ever.
The problem with the “knowingly infect” clause of the law is the various state attorney generals fluctuating interpetations of it.
For example in VA when we had a democrat attorney general, if the “neg person” was informed once that he was having sex with a “poz person” then the “knowingly infect clause” could not be used.
BUT under our republican strict interpetation, I can still be charged with the “knowingly infect” clause anytime I have sex with a neg person even if I informed him in a previous sexual encounter and did not do so before we had sex again. Here is the additional rub, the police or attorney general can charge me without the other person’s consent or knowledge.
The republican attorney general is hiding under the consent laws. One can not give consent if they are “under the influence” (drugs, alcohol, excessive exhaustion, restrained, near death, driving, sexually aroused, and few other odd things).
So based on that law, you could never give me “informed consent” to have “magnet” sex with you. So in that interpetation, I am screwed anytime I do sex with any “neg” person. I can still go to jail for being poz. And yes in the last few months, several friends have been charged and judge for a sex crime. All because they had sex with “neg-informed” person.
So unless the hiv laws are standardized and rationalized across the country, there will always be pockets of insanity in our judical system.
Drew, i agree there are problems with the disclosure laws, and they do need to be harmonized throughout the country. The Virginia statutes and other outliers are probably unconstitutional under Lawrence (because it impermissibly infringes on the private sexual liberty espoused in that holding). Your interpretation of the law is flawed; there are many affirmative defenses that can be raised with these kinds of cases (consent, disclosure, etc.), and for the most part, states do recognize those defenses (maybe not in VA, but they do in most states).
I still think disclosure is the best option that we have right now. It’s not a huge invasion of privacy and it isn’t that big of a hassle (that’s why they have the HIV status box on manhunt, etc. anyway). Disclosure makes more sense to me because it would undermine the mens rea of the statute.
As for the laws themselves, you’re just not going to win on the legal argument that the government should just stay out of this (bc the Supreme Court, and other courts have already held that this is a compelling state interest–something that would pass strict scrutiny). I don’t agree wholeheartedly with the statutes. Knowing has a special meaning in criminal law (it means you’re practically certain something will happen). Having a statute with knowing is a lot more stringent than reckless (aka an awareness that something might happen-like infection). I think it makes sense the way the majority of these statutes are currently drafted: it criminalizes willful infliction of the virus and has a stringent requirement for mens rea (the outliers of course would be TN and VA).
Though ARV drugs have improved survival by quite a bit, this is all relative given how quickly the strain of virus acquired (and different, more quickly mutating strains can be acquired from different partners).
Resistance to strains occurs, and once it does, those drugs are no longer effective for suppression of viral replication. Depending on how quickly the strain mutates and what new strains are acquired, sometimes HIV can quickly progress to AIDS.
This is important to consider when thinking about relying on ARV to prolong life.
“the virus still sows terror, uncertainty, shame and endless…”
Fear is good when it keeps you from doing stupid things.
“But the HIV transmission itself usually shouldn’t be a crime.”
I hope you don’t mean that NO HIV transmission should EVER be a crime. Because that would be blatant nonsense. Yes, you can live a long and relatively healthy life on meds. But you can do the same thing missing 4 toes,(so you shouldn’t be punished for taking a friend climbing K2 in freezing conditions), however that doesn’t mean cutting 4 toes off a guy’s foot shouldn’t be a crime.
“And when neg person dodges the bullet and there’s no infection, just unprotected sex, then that should definitely never be a crime, IMO…”
There are certain elements to what constitutes a crime, mainly mental state (specifically intent), conduct, concurrence and causation. If the poz guy discloses his status or if the infection takes place during a quick fuck on a bareback party, you can’t argue intent, and if the neg guy dodges a bullet, you can’t argue causation. So I’m with you there: Laws should be changed or applied accordingly so that the punishment (or non-punishment that is) fits the actual criminal intent.
However – and that’s something that happened to a friend of mine – if a guy gets off on not taking his meds and having a high viral load, gets a guy drunk, tells him he’s neg and then talks him into barebacking, knowingly and willingly infecting him, that’s intentionally causing bodily harm.
I agree with you that being HIV+ itself shouldn’t be criminalized and neither should be having sex for a HIV+ guy. However, if an infection happens, it should be treated as what it really is:
If it’s an unfortunate accident, if it takes place under consenting circumstances etc.. it’s not a crime.
If it’s negligence, it should be treated as such.
And if it’s intentional, it’s just the same as with cutting off toes.
Drew? How did they get charged if everything was legal and alright? Someone would have had to report it, so I’m guessing your story is not all it is said to be.
Passing on HIV knowingly (and under false pretenses) shows a serious lack of morality and should be illegal. If you know you have HIV and you lie, then you take away the persons right to an informed choice. However, if you are unaware of your HIV status and then infect someone (unknowingly) then there should not be blame assigned. It just makes sense.
@ rawTOP I do however see your point, the bottom makes their choice and there can obviously be consequences. I think however, the point behind making it illegal isn’t to negate the responsibility of the bottom, but to negotiate shared responsibility. Perhaps the individual should be charged with aggravated assault or something similar. OR murder if the individual doesn’t find out until to late. ANd obviously on a case by case basis. For example a top who repeatedly fucks someone sans condom and lies about his status thus infecting them would be guilty. Where as a top who goes out and gets drunk would not be guilty (there is a huge difference there…as in INTENT).
To say the top has no responsibility is ignorant. That would be the same as me handing the keys to my car to you knowing the breaks dont work. And then telling you EVERYTHING is fine. You know the risks of driving, you know a collision can occur; however, i took away your right to an informed decision. I know this isnt exactly analogous.
“I think you’re confusing morality and criminality.”
With all due respect, you’re wrong, I think it is you who’s got it mixed up. If I knowingly and willingly inflict harm against the express wishes of the other, that is the textbook definition of a crime. As I said, ALL elements have to coincide. I agree with you that it’s not criminal to inflict harm upon somebody who has no problem with it (the legal equivalent of a piercing or a branding). But if you tell me that you have a peanut allergy and I knowingly and willingly feed you something with peanut butter, I can’t argue as a defense that you should have cooked it yourself because “the only person who’s responsible for YOUR health is YOU”.
Your argument hinges on the responsibility of the bottom / allergic / whatever. The responsibility of the “injured” party in this case is actually quite irrelevant. The difference lies in the knowlegde on the side of the HIV+ top / cook / whatever and using this knowledge with malicious intent.
BTW: I just disagree with your politics. I really like your blog (well, except the politics), get off on bareback sex, etc.
I think too much pressure is being put on the HIV positive person.I am neg as of February. I am a versatile bottom who tops on occasion. I have had bareback sex. If I was to become HIV positive, I wouldn’t blame the top who lied to me. I would blame myself for being stupid enough to go without a condom when I wanted to remain Negative. If you were really worried about the person’s status and your own future you would be more diligent about learning the facts.
I’m looking at the back of a condom box right now. “Condoms are primarily intended for use in vaginal intercourse; other uses can increase the potential for breakage.” “Latex condoms do not completely eliminate the risks of pregnancy and sexually transmitted infections.” What happens if someone develops HIV even when the other person used a condom? I feel that if your sexually active at all you should know your risks and really think about whether or not your willing to pay to play. I know if North Carolina that when you go into the health clinic your records are going to be gone over if you come back with an STD. If you have HIV and later develop another STD they can charge you for not wearing a condom. Kind of stupid if you ask me, because if I was HIV positive and contracted an STD, I highly doubt that I could sue that other person. However, they would be able to sue me even if they didn’t contract HIV. Kind of a fucked up world we live in.
If you are a BB bottom, you’re probably going to end up poz. The numbers are stacked against you. Even if you only play raw with a few people, you are still having sex with all the people your partners are having sex with. HIV+ people should not ever reveal their status to a sexual partner unless they are seriously dating and want to have a serious relationship. Why? Because once you put the info out there, you can’t get it back. My poz buddies tell those who ask their status “I don’t know” or they lie and say they’re neg because they don’t want the rejection. If you don’t want HIV, use condoms. If you want to bb, then unfortunately you’re probably going to end up with hep C, syphilis, gonorrhea and ultimately HIV. Most guys don’t even want to know your name, so why would you tell them your medical history? Guys don’t ask questions when they bb in darkrooms, sauna, or the park. I don’t see how you can expect such honesty on the chat lines or anywhere else? Heck, most poz guys don’t know they’re poz! If you are out here playing raw, you are in essence accepting whatever hand fate deals you. Can’t blame anybody but yourself. I can’t make you responsible for my health any more than I can make you responsible for my finances etc. If you bb, get tested regularly and if you end up poz, just think of the cost of HIV drugs etc as your sex tax.
@bb40… Well Said!!!
Love the blog – get off on reading about bb sex. However, in my personal life, I am safe-only bottom – always ask status and insist on the top wearing a condom.
What I think of is a criminal act? The poz top that swore he was HIV negative – put a condom on, broke it, then continued to fuck me (after I told him to stop several times) to try to give me his load. I found out his status from snooping on his computer when he was in the shower. He had his manhunt account open and was emailing with a guy who wanted to come watch him breed me and I confronted him when he got out of the shower.
I agree – If all partners are honest about their status when asked – or if the bottom (or top) assumes the risk of contracting hiv by barebacking, then I think it is more of a moral issue.
My take? However, Purposefully infecting another individual with hiv against their will is a criminal act.
And yes with all the meds out there, being hiv+ may not be as big a deal anymore, but those drugs really mess you up – the month I spent on them was one of the worst I can remember. I honestly think that anyone that doesn’t care if they get infected because of the drugs available should go on the hiv drugs for a month and then make their decision.