If your sexual partner had HIV and did not tell you about it, how would you feel? Most of us would feel betrayed, lied to. We might be scared that we’d contracted the virus, too. If we had known, maybe we would have chosen not to have sex, or might have taken different precautions. Perhaps we’d be angry that someone took away our ability to evaluate the risk for ourselves, and instead decided for us that the sex was worth the risk.
Disclosing HIV status can make someone vulnerable to risks, but open communication forms the basis of healthy relationships.
Many people think it should be against the law for someone with HIV to withhold their status from a sexual partner. To do so seems like a violation of someone’s right to make their own decisions about the sex they have, a denial of pertinent information that needs to be factored into one’s decision-making.
Then why are organizations like American Psychological Association, the American Medical Association, and the U.S. Department of Justice opposed to these types of laws?
In June 2008 in Iowa, Nick met Adam on a dating website. They hung out at Nick’s apartment, spent a few hours getting to know each other, and eventually had sex. A few days later, Adam heard through the grapevine that Nick was HIV-positive.
The next month, three armed detectives stormed Nick’s workplace, took him to the local hospital, and ordered nurses to take his blood. Meanwhile, police were searching his house for drugs — not illicit drugs, but lifesaving antiretroviral drugs. Nick was arrested. His crime? Criminal transmission of HIV.
Even though Adam never got HIV.
Nick was sentenced to 25 years in prison, but eventually a successful letter-writing campaign convinced a judge to resentence Nick, who released him with time served, plus five years’ probation, bringing his total imprisonment to just less than a full year.
During probation, Nick had to wear an ankle monitor and take a lie-detector test every six months, and was subject to search and seizure of his home. He had an 11 p.m. curfew, and couldn’t use an email address, social media accounts, or instant messaging. He had to obtain permission to leave the county, even to visit his parents in a neighboring county. As a sex offender, Nick couldn’t spend time with his six nieces or nephews without adult supervision. And, as a convicted felon, he lost his right to vote.
Disclosing HIV Status to a Sex Partner
According to the Centers for Disease Control and Prevention, 19 states require people with HIV to disclose their status to sex partners. Only three states account for condom use and only one state accounts for use of antiretroviral therapy, both of which dramatically reduce transmission risk. HIV transmission is not actually required for these statutes to be pursued.
Sentences for people failing to disclose HIV status vary by state, with some states giving judges the power to sentence offenders to life in prison. Even states that don’t have HIV-specific laws can prosecute people with HIV under general criminal statutes, like aggravated assault with a deadly weapon.
HIV Transmission Risk
The risk of HIV transmission per sex act is actually much lower than most people might guess. Let’s talk about Nick and Adam’s encounter in particular. The most high-risk sex act, receptive anal sex from a partner with HIV, has about a 1.4% risk of HIV transmission.
But Nick used a condom when he had sex with Adam. That would have decreased that risk even further, by 72%, to about 0.4%. And Nick was on antiretroviral therapy, and those blood tests he was forced to give showed that his viral load was undetectable. And the CDC says that, when people with HIV achieve viral suppression, there is “effectively no risk of transmitting HIV to their HIV-negative sexual partners.”
Pitfalls of Criminalization
Laws making nondisclosure against the law originate from the Reagan era in the 1980s, when HIV was a death sentence, and haven’t caught up with medical advances that have reduced transmission risk and have brought life expectancies for people with HIV nearly up to those of the general population.
There are other pitfalls to criminalizing nondisclosure. For example, how do you prove, in a court of law, that you disclosed your status? Unless you’re getting your sensitive conversations notarized, it’s one person’s word against another’s. Abusers can keep partners with HIV in abusive relationships by threatening to tell police HIV was never disclosed. You can imagine someone using this information to get revenge on an ex. Rapists can avoid being reported if they attacked someone with HIV. These aren’t just hypothetical scenarios — they are all things that actually happened.
These laws also aren’t effective. Studies show these laws don’t actually discourage people from withholding their status, and could make people afraid to disclose, since it could open them up to lawsuits from vengeful exes. They’re not found to have an effect on condomless sex rates or HIV incidence.
In fact, nondisclosure laws might backfire by making people less willing to be tested for HIV. Ironically, these laws encourage ignorance, because ignorance of your status is the best defense against prosecution. Meanwhile, people who are responsible and get tested are potentially punished by these laws.
To beat this epidemic, we need people to get tested. People who are aware they have HIV are more likely to use condoms and viral suppressing drugs. Meanwhile, 40% of new infections are transmitted by people who do not know their status. One study found a drop in HIV testing after a spate of local media coverage on HIV-specific prosecutions. A study conducted in Canada predicted this kind of decrease in testing could lead to an 18.5% increase in community HIV transmission.
Did the Punishment Fit the Crime?
In 2014, the Iowa Supreme Court vacated Nick’s guilty plea and he no longer had to register as a sex offender. But the entire experience pretty much bankrupted him and damaged his reputation such that gaining employment was difficult. He couldn’t even get a job as an Uber driver because a background check wrongly identified him as a sex offender. Now, anyone can find Nick’s HIV status through a simple Google search. What was once private information is now a matter of public record. He had his life upended, spent nearly a year in jail, and dealt with the indignities of probation. All because he had consensual sex with another adult, which thanks to medical advances had effectively zero chance of transmitting HIV to his partner.
Yet Adam’s claim that he was denied the opportunity to make an informed decision can’t be ignored. Anyone who values informed consent — the ability to make decisions about one’s own health and body based on access to all the relevant information — would be hard pressed to dismiss Adam’s experience:
Individuals should have the choice as to whether or not they would engage with someone who is HIV positive … In this case, that choice — and what I also consider a right — was not afforded to me. It was 181 days of pure fear, that six-month window when you don’t know.
Disclosing a stigmatized infection like HIV can be very difficult. Sharing that information can make someone vulnerable, and can even put them at risk of arrest or violence when that information gets into the wrong hands. There are many reasons why someone might decide not to disclose.
However, healthy relationships are built on trust, and talking about HIV/STD status is an important conversation for people to have when first getting together. It might be a difficult conversation, but it’s an important one for all sexually active people to learn to have, regardless of their own status. The conversation around HIV and STDs is a time to talk about health, boundaries, and what activities you’re into. Disclosing status can be one part of a larger, and very important, conversation that can help form the foundation of a healthy relationship.
Any Planned Parenthood health center can help you reduce risk of transmitting or acquiring HIV. We offer condoms, HIV screening, education, and preventive medication, and can connect you to treatment if you test positive for the virus. More information on how and where to get tested can be found here.
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