"His crime: having sex without first disclosing he had HIV."

December 4, 2013 9:19 AM

BuzzFeed and ProPublica report: How An HIV-Positive Man Was Sent To Prison For Having Sex — With A Condom

Related: The Daily Iowan: Editorial: Scale back HIV-transmission laws

HIV Plus Magazine on HIV transmission and the younger generations of gay men: Let's Stop Bludgeoning Young Gay Men with Our AIDS Tragedy

And some perspective of how far we have come: The Stunning Way The White House And Reporters First Reacted To The AIDS Crisis

posted by roomthreeseventeen (209 comments total)

Historically, Typhoid Mary. More recently the various TB cases on the CDC no-fly list. Ya gots a (more or less) deadly disease.
posted by k5.user at 9:24 AM on December 4, 2013 [1 favorite]

The Stunning Way The White House And Reporters First Reacted To The AIDS Crisis

Oh Business Insider. Only a fool would be stunned by that reaction.
posted by IvoShandor at 9:26 AM on December 4, 2013 [3 favorites]

And some perspective of how far we have come: The Stunning Way The White House And Reporters First Reacted To The AIDS Crisis

What should really scare you is the combination of the birth control case coming before SCOTUS and this line:

MR. SPEAKES: What’s AIDS?
Q: Over a third of them have died. It’s known as “gay plague.” (Laughter.) No, it is. I mean it’s a pretty serious thing that one in every three people that get this have died. And I wondered if the President is aware of it?

There's a enormous number of people that still believe HIV/AIDS is the "gay plague." If that mandate is overturned, what's to stop employers for refusing gay employees health care that's used to treat it?
posted by zombieflanders at 9:37 AM on December 4, 2013 [3 favorites]

I wonder how many carriers of cancer-causing HPV strains are going to go to jail.

Prison is not how you fix a public health crisis.
posted by rtha at 9:41 AM on December 4, 2013 [43 favorites]

It's really crazy that this is classifies him as an aggravated sexual offender.
posted by likeatoaster at 9:44 AM on December 4, 2013 [3 favorites]

Note that people living with HIV/AIDS who are on effective HIV treatment have a greater than 96% reduction in the likelihood they can pass on the virus which, given the failure rates of condoms, is better protection that having "protected" sex.

So I'm sure the people in favour of jailing people living with HIV/AIDS over non-disclosure laws will get right on ensuring that everyone has access to the life-saving HIV/AIDS treatment and care they need.

(Disclosure: HIV/AIDS epidemiologist.)
posted by docgonzo at 9:51 AM on December 4, 2013 [44 favorites]

This sucks. It sucks that many gay men still don't know how to talk to each other about HIV, it sucks that the government would target people with HIV in this way, and it really sucks that the third comment on this thread is a dumb joke.

I'm going to use this space to share a little info about PrEP, a very promising (if pricy) way of preventing HIV transmission by giving HIV- guys meds.
posted by roger ackroyd at 9:55 AM on December 4, 2013 [4 favorites]

While I'm supportive of giving people at risk more ways to protect their health and the health of their loved ones, PrEP has not been shown to be as effective at decreasing the number of new infections as getting people already infected with HIV the treatment and care they need to survive.
posted by docgonzo at 9:58 AM on December 4, 2013 [1 favorite]

I'll say that I'm glad he didn't get the 25 years, and the aggravated sex offender thing is a bit too extreme in my opinion (esp. with regards to the under 14 thing), but the guy is a jerk and chose to take a chance on having a permanent and detrimental effect on someone's life. The dice were rolled and everyone was able to walk away unscathed, but still....

I say instead of jailing people convicted of this, they should just force them to get "HIV +" tattooed on their privates.
posted by Debaser626 at 10:07 AM on December 4, 2013 [2 favorites]

What offensive and ignorant bullshit.
posted by rtha at 10:18 AM on December 4, 2013 [14 favorites]

Tattooing someone with HIV. What an awesome idea. Its even more awesome because the tattoo is applied to the genitalia. By force. The letters of this tattoo are scarlet, yes?
posted by The Vice Admiral of the Narrow Seas at 10:24 AM on December 4, 2013 [8 favorites]

To people who don't consider this a serious crime, you could make a pretty good case of this as being rape by deception. So there's some consent issue here, too.
posted by Mitrovarr at 10:29 AM on December 4, 2013 [8 favorites]

I'm not completely against these laws, because I can see a purpose behind them. There ARE people out there who like to fake using a condom, and trade stories online with how to "get away with it."

But this:

for the rest of his life — he is 39 — he will remain registered as an aggravated sex offender who cannot be alone with anyone under the age of 14, not even his nieces and nephews.

Is OFFENSIVELY STUPID because it doesn't even remotely relate to the crime/issue at hand. He was not accused or suspected of pedophilia or child molestation. It's disgusting to treat him as if he were. To me that seems to violate the concept of "cruel and unusual punishment."
posted by dnash at 10:31 AM on December 4, 2013 [10 favorites]

I say instead of jailing people convicted of this, they should just force them to get "HIV +" tattooed on their privates.

Prison camps and tattoos as solutions have tended not to work well for all concerned.
posted by Blazecock Pileon at 10:35 AM on December 4, 2013 [12 favorites]

PrEP has not been shown to be as effective at decreasing the number of new infections as getting people already infected with HIV the treatment and care they need to survive.

Actually, PrEP has been shown to be extremely effective in people who actually use it as prescribed. Equal to treatment as prevention.

(Disclosure: HIV researcher)
posted by Sophie1 at 10:38 AM on December 4, 2013 [3 favorites]

To people who don't consider this a serious crime, you could make a pretty good case of this as being rape by deception. So there's some consent issue here, too.

Then seriously, we need to start locking up every single person who has sex with or without barrier protection if they are not regularly tested for STDs and they don't disclose that they tested positive for HPV, chlamydia (which won't kill you, but can ruin your reproductive capabilities), etc. Explain to me how this fixes a public health problem. Even noncompliant TB carriers with active TB don't end up in jail and with lifelong records that keep them from finding a place to live or a job.
posted by rtha at 10:43 AM on December 4, 2013 [11 favorites]

"Actually, PrEP has been shown to be extremely effective in people who actually use it as prescribed. Equal to treatment as prevention."

Emphasis mine. TasP has been demonstrated to work on the population level. PReP has not.
posted by docgonzo at 10:44 AM on December 4, 2013 [2 favorites]

Mitrovarr: "To people who don't consider this a serious crime, you could make a pretty good case of this as being rape by deception. So there's some consent issue here, too."

It's no more serious a crime than me failing to disclose that I once had chicken pox, so could possibly have a shingles outbreak at any time. If the HIV+ person was not undergoing treatment and did not use protection or disclose their status, I could agree with you. Deceiving someone like that does indeed raise significant issues of consent that should be dealt with by imprisoning people in some cases.

That is not what happened in this case.
posted by wierdo at 10:44 AM on December 4, 2013 [1 favorite]

There is some research that suggests that more widespread, unmanaged PrEP use could lead to increased drug resistance. Probably a bit early to call it a panacea.
posted by Blazecock Pileon at 10:45 AM on December 4, 2013

Mitrovarr: "To people who don't consider this a serious crime, you could make a pretty good case of this as being rape by deception. So there's some consent issue here, too."

It's quite clear that no one here is disputing that having sex - even protected sex - with another person without disclosing that one has a sexually transmitted infection is a serious misdeed. And as far as I can tell nobody has been silly enough to claim it isn't a crime; it clearly is a crime, indisputably so, in 35 states in the US. People here are concerned with two points: (a) whether it should be a crime, and (b) if so, whether this punishment suits it.

As to the first point, there are good reasons why it might not be a good idea to make this a crime at all. Many serious misdeeds are not crimes. Cheating on your spouse is a serious misdeed. Lying to your children about their paternity is (in many cases anyway) a serious misdeed. Yet these things are not illegal, because inserting governmental regulation into personal relationships in this way would be toxic and close to useless. As rtha points out, a growing number of people actually get cancer and die because of HPV, which is in itself a usually-harmless STD (and which, we may note, is emphatically not most prevalent among gay men.) Why isn't knowingly exposing someone to HPV a crime? The answer seems simple: because that would be a terrible way to curb a problematic disease.

As to the second point, I hope everyone is in agreement that, even if this is a "serious" crime, labeling the convicts as "sex offenders" rises to the level of cruel and unusual punishment. I gather from comments here that sadly we might not all agree, but even so I feel as though arguing this point is a bit silly. If people can't discern cruelty when it's staring them in the face, it won't help to have me explain it to them.
posted by koeselitz at 10:47 AM on December 4, 2013 [5 favorites]

So I'm sure the people in favour of jailing people living with HIV/AIDS over non-disclosure laws will get right on ensuring that everyone has access to the life-saving HIV/AIDS treatment and care they need.

Non-disclosure of a serious communicable disease is kind of a big deal in my mind. I don't agree with how this case went and the consequences are inappropriate and too severe, but there should most certainly be consequences of some kind. But yes, absolutely HIV/AIDS treatment should be provided to those that need it. That might be easy for me to say, living in BC, but yeah I am all for it.
posted by Hoopo at 10:51 AM on December 4, 2013 [2 favorites]

wierdo: It's no more serious a crime than me failing to disclose that I once had chicken pox, so could possibly have a shingles outbreak at any time.

Of course it is. Do you, reasonably, think anyone is going to refuse to have sex with someone because they once had chicken pox? Now do you think that there's a solid chance someone will refuse to have sex because their partner has HIV? What matters in disclosure is information that a reasonable person would expect to affect whether their partner would give consent.

It's like people have somehow forgotten this is an inevitably lethal disease that can only be sort of held at bay with loads of crushingly expensive drugs with all of their accompanying side effects.

All of that being said, I do think the legal penalty here is ridiculous, particularly when you consider the care taken to avoid infecting the partner.
posted by Mitrovarr at 10:53 AM on December 4, 2013 [7 favorites]

Also, as someone who has certainly lived through the crisis and was among the many women working in the field in the late 80's and early 90's through the highest rate of deaths (1993), the third link is highly relevant. Young gay and bisexual men and trans* people who have sex with men are not having the same experience we did 20+ years ago. I lost almost everyone too, but screaming at 19 year olds about how horrific it was does not encourage less risky behavior. At all.
posted by Sophie1 at 10:57 AM on December 4, 2013 [3 favorites]

Tattooing someone with HIV. What an awesome idea. Its even more awesome because the tattoo is applied to the genitalia. By force. The letters of this tattoo are scarlet, yes?

Well, it's probably better than being locked up up for 25 years. By force.

If someone has a history of not disclosing their HIV positive status, and has been found guilty of this behavior, then why not tattoo them?

I don't understand the defensive nature of the some of the stances towards this individual. By any objective standards, he's an asshole at the very least. Granted, he took some steps to minimize exposure, but by no means are those steps any guarantee against transmission. Condoms break, medicines aren't 100%, and the road to Hell is paved with good intentions.

To knowingly be a carrier of a potentially life threatening disease (which is, in a best case scenario, a decidedly life altering disease) and to engage in behavior, especially an act which is by its nature intimate and requires consent, with an unsuspecting individual is a Very Bad Thing.

I think locking someone up for a quarter century and making them register as an aggravated sex offender is way overkill, but let the punishment fit the behavior. If you won't disclose your HIV status to people, prior to copulation, your tattoo will.
posted by Debaser626 at 10:57 AM on December 4, 2013 [3 favorites]

While these laws seem questionable at best and the penalties seem extreme to the point of being cruel and unusual punishment (15 years?), this particular part:

...because Rhoades used a condom.

Reads to me like a defense attorney saying, "But it wasn't *really* dangerous when my client pointed the gun at the plaintiff, the safety was on!"
posted by tylerkaraszewski at 10:58 AM on December 4, 2013 [2 favorites]

That would be a weird thing for a defense attorney to argue, to be sure.
posted by agregoli at 11:00 AM on December 4, 2013 [1 favorite]

If someone has a history of not disclosing their HIV positive status, and has been found guilty of this behavior, then why not tattoo them?

Because it is a terrible idea that will not do anything at all to actually lessen transmission or stigma. If all you care about is punishing Bad People then I guess this would work, but it won't actually solve the real problem.

I don't understand the defensive nature of the some of the stances towards this individual.

And I don't understand people who think that criminalizing certain kinds of behavior is a good way to address public health issues.
posted by rtha at 11:01 AM on December 4, 2013 [8 favorites]

While these laws seem questionable at best and the penalties seem extreme to the point of being cruel and unusual punishment (15 years?), this particular part:

...because Rhoades used a condom.

Reads to me like a defense attorney saying, "But it wasn't *really* dangerous when my client pointed the gun at the plaintiff, the safety was on!"

Literally right after that sentence:

And medical records show he was taking antiviral drugs that suppressed his HIV, making transmission extremely unlikely. A national group of AIDS public health officials later submitted a brief estimating that the odds of Rhoades infecting Plendl were “likely zero or near zero.”

posted by zombieflanders at 11:03 AM on December 4, 2013 [8 favorites]

Literally right after that sentence:
And medical records show he was taking antiviral drugs that suppressed his HIV, making transmission extremely unlikely. A national group of AIDS public health officials later submitted a brief estimating that the odds of Rhoades infecting Plendl were “likely zero or near zero.”

That is presumably the same odds as a gun going off while the safety is on. It still doesn't make pointing it at people an acceptable thing to do.
posted by tylerkaraszewski at 11:08 AM on December 4, 2013 [2 favorites]

The reason pointing a gun at someone is unacceptable is because it's a threatening activity that would lead a reasonable person to think they're about to be injured or killed. Consensual sex, if done properly, does not lead to that result.
posted by 0xFCAF at 11:12 AM on December 4, 2013 [7 favorites]

Can we stop with the "Having HIV is like pointing a gun at someone" meme? It is terribly offensive to those of us living with the virus.

Pointing a gun at someone is a one way street, while having sex is a two way agreement and frankly, should require responsibility on the parts of everyone participating. My husband has HIV. There is no gun.
posted by Sophie1 at 11:13 AM on December 4, 2013 [30 favorites]

I think the big problem is if you are going to enact panic legislation on niche cases, try and come up with some gradations of punishment that fit the actual circumstances instead of a one-size-fits-all lock 'em up and throw away the key thing.

...because Rhoades used a condom.

Reads to me like a defense attorney saying, "But it wasn't *really* dangerous when my client pointed the gun at the plaintiff, the safety was on!"

From the law itself:

"Intimate contact" means the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.

So if I were a defense attorney I would try and argue that the law was only broken if the condom broke.
posted by BrotherCaine at 11:13 AM on December 4, 2013

So if he had transmitted the virus despite the precautions he took, would people feel differently about this?
posted by Pope Guilty at 11:13 AM on December 4, 2013 [1 favorite]

Yes, for the same reason that I think vehicular manslaughter should be worse than a DUI.
posted by BrotherCaine at 11:14 AM on December 4, 2013 [6 favorites]

So it's okay to not disclose to a sexual partner that you have an STI unless you're unlucky enough to transmit it? The judgment comes not in the actions but in the chance?
posted by Pope Guilty at 11:17 AM on December 4, 2013 [3 favorites]

So it's okay to not disclose to a sexual partner that you have an STI unless you're unlucky enough to transmit it? The judgment comes not in the actions but in the chance?

There is a big difference between morally and ethically ok and legally ok. We are not trying to legislate morality, right?
posted by Sophie1 at 11:18 AM on December 4, 2013 [3 favorites]

You sure wouldn't know that to read this thread.
posted by Pope Guilty at 11:19 AM on December 4, 2013 [4 favorites]

So if I were a defense attorney I would try and argue that the law was only broken if the condom broke.

That quote from the law does read like this wouldn't count as "intentional" because of the condom.
posted by tylerkaraszewski at 11:19 AM on December 4, 2013

We are not trying to legislate morality, right?

Who's not? Isn't this what all our fundamental laws are based on? Why is murder illegal then?
posted by tylerkaraszewski at 11:20 AM on December 4, 2013 [5 favorites]

So if he had transmitted the virus despite the precautions he took, would people feel differently about this?

We're talking about someone who used a condom (let's say it fails 1 in 10 times), with with very low viral load (according to medical experts, this reduces the risk substantially, let's call it a 100x reduction), and the maximum probability of HIV transmission in one sex act is 50 / 10,000 (per CDC).

Do the math: You're asking us to consider a 1 in 200,000 counterfactual. The set of other 1-in-200,000 events that could take place in any interaction between humans is so broad as to be meaningless.
posted by 0xFCAF at 11:20 AM on December 4, 2013 [6 favorites]

0xFCAF: Do the math: You're asking us to consider a 1 in 200,000 counterfactual. The set of other 1-in-200,000 events that could take place in any interaction between humans is so broad as to be meaningless.

Regardless of the odds if everything goes correctly and is as represented, you still have to tell people. Just the knowledge that your partner might care is enough reason that you have to do it. They might care for other reasons, for instance (long-term relationship concerns, etc.)
posted by Mitrovarr at 11:23 AM on December 4, 2013 [3 favorites]

did he transmit the hiv virus? did anyone become infected with hiv from this person?
posted by robbyrobs at 11:23 AM on December 4, 2013

rtha: "I wonder how many carriers of cancer-causing HPV strains are going to go to jail.

Prison is not how you fix a public health crisis."

Course not - Scarlet Letters are! The benefit is if you see a young, unmarried pregnant woman, you know who to blame without all that detective work!
posted by symbioid at 11:25 AM on December 4, 2013

This is one of those times I'm going to have to disagree with the herd. He was asked specifically if had any STDs and said no. The condom did fall off during sex, which is always a risk. The victim said he was concerned because he had a nick from a shaving accident. The perp only got 5 years probation. Personally, I think he deserves prison time. How in the world is it okay to lie about your potentially deadly STD before having sex with someone?
posted by xammerboy at 11:27 AM on December 4, 2013 [7 favorites]

did he transmit the hiv virus? did anyone become infected with hiv from this person?

No, he just deliberately exposed somebody to the risk of transmission without their consent, which is apparently okay because he took precautions that have a non-100% success rate. So sure, he gambled with the future health and the life of his partner without his partner's knowledge, but it's okay because he didn't roll snake eyes. If he'd rolled snake eyes, then and only then would it be okay to be upset with him.
posted by Pope Guilty at 11:28 AM on December 4, 2013 [12 favorites]

And to head it off before it gets said, I am absolutely not against HIV-positive people having sex. I am against people with any STI not disclosing that prior to sex. It robs their partner of the ability to give informed consent to sex.
posted by Pope Guilty at 11:30 AM on December 4, 2013 [8 favorites]

That's a heartbreaking and terrifying example of a well-intentioned law enforced with extreme prejudice against a doubly-stigmatized and vulnerable minority.

Now I know that if I ever need to get an emergency HIV treatment because of possible accidental exposure from a casual encounter, to never, ever, ever give the name of the person I was with to medical staff.
posted by treepour at 11:31 AM on December 4, 2013 [3 favorites]

Informed Consent.

Fuck, even the evil corrupt and deceitful system known as Capitalism has *some* laws on fraud.
posted by symbioid at 11:32 AM on December 4, 2013 [1 favorite]

And if we're to really do the math, the article says HIV is transmitted in 5 of a 1000 cases. That's about 1 in 150. If you buy that the condom falls off only in 1 in 10 cases, that's a 1 in 1500 chance of transmission, but how do you account for the victim having a cut on his privates, which would greatly increase the chance of transmission? In any case, I think the numbers are beside the point.
posted by xammerboy at 11:43 AM on December 4, 2013

On a lighter note, I thought this quote from the article was amusing:

In Tennessee, ProPublica’s questions were sent to the state epidemiologist, who told a spokesman: “Ain’t touching it with a 10 foot pole.”
posted by Mitrovarr at 12:02 PM on December 4, 2013 [5 favorites]

I'm not going to defend, or blame the person in this article. I'm only going to point out that people do not think rationally about sex, or HIV specifically. There was a recent discussion amongst a group of friends (public health and risk people, myself included) about the risks between:

- Unprotected sex with someone who SAYS they are negative
- Unprotected sex with someone who admits they are positive, but is on HAART meds
- Protected sex with either of the above

Care to list them in the order you THINK the actual probabilities exist?

Obviously the risk depends on the prevalence of HIV in the general and appropriate sub populations that you're speaking of, but in Washington, DC, let's just say that it doesn't calculate the way you think.

We also reach into the odd incentivization that's been discussed elsewhere. Namely, if the individual had not KNOWN they were HIV+, then the law wouldn't have applied, I believe. So, are we incentivizing people to be honest, or not get tested because then they have deniability? I can tell you from working with some of the clinics, more people see it as a reason NOT to get tested.

TL;DR: Human beings are not particularly rational creatures, especially when it comes to sex, and we are ill-equipped to make risk-based decisions.
posted by petrilli at 12:12 PM on December 4, 2013 [13 favorites]

Yeah, I agree with others that it's not about whether or not the disease was passed, it's about the deliberate lie and the consent issue.

In my single years, I would have categorically refused to have sex with anyone with HIV, regardless of how much they swore they were on antivirals, the same way I would have refused to have sex without a condom with someone who didn't bring medical results of their clean bill of health overall.

If someone with HIV had deliberately lied about their status in order to get sexual access to my body, I would absolutely, 100%, consider that rape by deception and be furious. And any intimation that disclosure is not required would tell me that the rights of penis-having individuals to penetrate was being given more weight than my right not to be penetrated.
posted by corb at 12:13 PM on December 4, 2013 [9 favorites]

The general idea of these laws is if you criminalize it, people won’t do it and transmission will decrease. However, transmission rates have stayed relatively stable since the mid-1990's with more and more HIV criminalization laws on the books.

Now we get to who to start with. Does everyone with HIV get to start suing the person that infected them and so on and so forth? Every person with HIV was infected by someone (mother, sexual partner, syringe partner).

While I think it's morally wrong to opt out of prenatal HIV testing and potentially have an HIV infected child when that can so easily be prevented, are we really talking about putting mom in prison because of it? While I think it is unethical to have sex with multiple partners while having been tested once two years ago and not knowing one's ACTUAL HIV status and putting "HIV-" on one's GRINDR profile, I guarantee you that there are many of those profiles.

The fact is that these laws are counterproductive, they cause a greater rate of transmission, are ineffective in achieving their goals of deterrence, promote a false sense of security among HIV negative people and further propagate HIV stigma.
posted by Sophie1 at 12:23 PM on December 4, 2013 [11 favorites]

I think we're just talking about the people who knowingly deceive others, like the guy in the article.
posted by corb at 12:34 PM on December 4, 2013 [2 favorites]

The fact is that these laws are counterproductive,

The problem, as we see right here in this thread, is that they are not counterproductive for those who just want to see the bad person punished for being bad, and damn any other consequences, intended or un. If you come at this from a public health perspective, then yes, these laws are counterproductive to the point of actually being harmful. But tough on crime and bad people and all that.

On preview:

I think we're just talking about the people who knowingly deceive others, like the guy in the article.

Which then logically leads to people just declining to know their status. How does that help anyone?
posted by rtha at 12:35 PM on December 4, 2013 [6 favorites]

rtha: If you come at this from a public health perspective, then yes, these laws are counterproductive to the point of actually being harmful.

I see a lot of people stating this, but I'm not totally sure I buy it. Do you know if there's good research that weighs in on this? I know people worry about it causing a disinclination to get tested, but it probably also convinces some people to tell their partners, and I'm not sure one would outweigh the other. Certainly there are other reasons to get tested that trump any concern about notifying partners (for instance, starting to show the symptoms of AIDS) and I suspect most cases are caught that way.
posted by Mitrovarr at 12:41 PM on December 4, 2013

You know what might cause HIV stigma? A worry that HIV-positive people are telling themselves that they don't need to disclose their infection to potential sexual partners.

What?


- More than half (54%) of U.S. adults, aged 18-64, report ever having been tested for HIV, including 22% who report being tested in the last year. The share of the public saying they have been tested for HIV at some point increased between 1997 and 2004, but has remained fairly steady since then.17

- Of those U.S. adults, aged 18-64, who say they have never been tested for HIV, nearly 6 in 10 (57%) say it is because they do not see themselves as at risk.17

- HIV testing rates vary by state, age, and race/ethnicity.17, 18, 19, 20, 21 For example, Blacks and Latinos are significantly more likely to report having been tested for HIV than whites (see Figure 1).

- Among the more than 1.1 million people living with HIV/AIDS in the U.S., an estimated 18% do not know they are infected (down from 25% in 2003) and knowledge of HIV status is even lower among some populations.1, 22, 23

- Many people with HIV are diagnosed late in their illness; in 2010, 32% received an AIDS diagnosis within one year of testing HIV positive.24

Link

I work for this place, but not on the policy side.
posted by rtha at 12:42 PM on December 4, 2013 [4 favorites]

I suspect most cases are caught that way.

Actually, no, most cases are "caught" by people voluntarily getting tested. Most people do not become symptomatic with HIV for 7 to 10 years after the virus is transmitted, therefore, early testing is in the interest of public health, as is decreasing the stigma around testing.
posted by Sophie1 at 12:44 PM on December 4, 2013 [7 favorites]

Why is tattooing someone with HIV a bad idea?


Uh, I guess its OK if the tattoo artist has been convicted of a crime that merits their exposure to a blood-borne pathogen. Felony ass-antlers, mayhap?

Would it be an additional crime to modify the tattoo post-infliction? I'd trick mine out to say 'HIV+MIND' and get that plus-sign worked on to resemble an 'E'. Or I'd do a Jesus-fish with the + transmutated to the eye-crucifix.
posted by The Vice Admiral of the Narrow Seas at 12:50 PM on December 4, 2013

And to head it off before it gets said, I am absolutely not against HIV-positive people having sex. I am against people with any STI not disclosing that prior to sex. It robs their partner of the ability to give informed consent to sex.
posted by Pope Guilty at 11:30 AM on December 4 [3 favorites +] [!]

THANK you! It's kind of astonishing, for Metafilter in particular, that so many people don't or won't recognize this as being an act of sexual assault.
posted by kafziel at 12:53 PM on December 4, 2013 [5 favorites]

Right, pretty much my position on this is that consent to sex was given with the implicit understanding that neither party had a deadly sexually-transmitted disease; consent that presumably would've been revoked had the non-infected party known.

I don't know if 25 years in prison is the right punishment for this given the very low probability of transmission, though.
posted by downing street memo at 1:04 PM on December 4, 2013 [4 favorites]

OK, regarding being lied to, the article says:

In an interview, Plendl told ProPublica he asked Rhoades if he was “clean.” He explained, “I always ask anyone, before anything, ‘Is your profile correct with your HIV status?’”
Rhoades said he doesn’t remember that exchange, but he admitted to lying about his HIV status online.

So, Rhoades does not remember Plendl asking about his status, or what his response was. He admits to lying about his HIV status online, where a potential employer could see.
posted by roomthreeseventeen at 1:25 PM on December 4, 2013 [1 favorite]

Which is more likely? That he lied about his HIV on a dating site because he was worried a possible employer would find him on said dating site and refuse to hire him, or that he lied on the dating site, like a lot of people lie on dating sites, because he didn't want to be filtered out of people who might sleep with him?

I will further note that the tale of the date involved them talking for hours - about, in part, embarrassing medical conditions - and yet he still managed to conveniently "forget" to mention his HIV status. Which is a thing he might reasonably conclude might be in doubt, given the lying on the profile.

It seems more likely he wanted to sleep with someone, figured that person would probably be fine anyway, and found a way to justify to himself that his desire for someone else's body got to override their need for informed consent.

This would never be tolerated on any other issue, and I am disappointed to see people more, not less, okay on this one.
posted by corb at 2:03 PM on December 4, 2013 [5 favorites]

Consenting to have sex with someone who might be lying or ignorant about something is not in any way equivalent to being raped.
posted by jaguar at 2:09 PM on December 4, 2013 [3 favorites]

This would never be tolerated on any other issue, and I am disappointed to see people more, not less, okay on this one.

But this is not at all true. I'm not going to compare HIV to pregnancy, but if you're a guy, and you ask if a woman has an IUD, and she says yes, and you get her pregnant because she doesn't have an IUD and you don't wear a condom? Guess what? You're still a dad.
posted by roomthreeseventeen at 2:11 PM on December 4, 2013

I think it's also worth noting that Plendl wasn't the one who notified the authorities, but that a nurse did it without consulting Plendl.
posted by jaguar at 2:11 PM on December 4, 2013

roomthreeseventeen: But this is not at all true. I'm not going to compare HIV to pregnancy, but if you're a guy, and you ask if a woman has an IUD, and she says yes, and you get her pregnant because she doesn't have an IUD and you don't wear a condom? Guess what? You're still a dad.

A large part of the issue there is that the child support payments are an obligation to the child, not an obligation to the mother. This has come up before in cases where people made unofficial arrangements with sperm donors.

And honestly? I would actually support a legal penalty against the mother in that situation, if you could somehow prove the case happened like that.
posted by Mitrovarr at 2:16 PM on December 4, 2013 [2 favorites]

Again, giving someone a virus should not be considered a crime. Especially, like in this case, where Nick Rhoades gave Adam Plendl NOTHING.
posted by roomthreeseventeen at 2:19 PM on December 4, 2013

Mitrovarr: “It's like people have somehow forgotten this is an inevitably lethal disease that can only be sort of held at bay with loads of crushingly expensive drugs with all of their accompanying side effects. All of that being said, I do think the legal penalty here is ridiculous, particularly when you consider the care taken to avoid infecting the partner.”

I can see where you're coming from; this is indeed a serious issue with colorations for consent. But I think another point we have to consider is the fact that the focus on HIV is sort of silly and narrow. What about herpes? What about other STDs? The most common STD on the planet, HPV, causes more potentially fatal cases of cervical, anal, and throat cancer every year. This is a real and growing problem. So why single out HIV? The disturbing likelyhood, as far as I can tell, is that HIV is scarier in the public mind – largely because, now as in the 80s, we view it as an "other" disease, something we don't have. (That's code for "only gay people have that.")

So if making knowing exposure of another person to HIV is going to be a crime, doesn't knowing exposure of another person to any STD have to also be a crime, to make this equitable?
posted by koeselitz at 2:25 PM on December 4, 2013 [5 favorites]

The copublisher of the main article linked to a summary of HIV Laws by state.

California separates felony vs. misdemeanor based on whether the HIV-positive person intentionally tried to infect their partner and specifies that simply knowing their HIV-positive status is not sufficient to prove intent, which I think is a valid and important distinction. (Though it looks like the misdemeanor charge applies to anyone who has sex while HIV-positive, regardless of whether they disclose, which is either a remarkably stupid law or a poorly worded summary of the law.)
posted by jaguar at 2:25 PM on December 4, 2013 [2 favorites]

Rape by deception is still rape.
Date rape is still rape.
Continuing after someone said stop is still rape.
Having sex with someone unable to give consent is still rape.

I say this as someone who has been raped violently at the point of a gun: every single one of my fellow victims who did not want to have sex or would not have sex or was tricked or lied or drugged into sex still has common cause under the same banner. We are, in fact, equivalent, because I refuse to leave someone deserving of protection out just because most people have more sympathy for violent rape victims.
posted by corb at 2:32 PM on December 4, 2013 [8 favorites]

Fine, then we mandate regular sexual health checkups, with attendant treatment of the diseases as discovered, with government subsidies available to those who can't afford the medical costs. Because unless you can come up with a middle ground for the apparently large percentage of crimes without intent (unlike rape) with something between that or imprisonment and concentration camp-style tattooing, I'm going to choose the former.
posted by zombieflanders at 2:51 PM on December 4, 2013

This report from the United Nation Joint United Nations Programme on HIV, Ending overly broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, makes recommendations that look similar to but go a bit further than California's law.

This document builds on the UNAIDS/UNDP Policy Brief on criminalisation of HIV transmission (UNAIDS/UNDP Policy Brief) issued in 2008. This UNAIDS/UNDP Policy Brief makes three key recommendations to countries. First, it urges countries to “limit criminalisation to cases of intentional transmission, i.e. where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it”. Secondly, it calls on countries to avoid introducing HIV-specific laws to address criminalisation of HIV non-disclosure, exposure and transmission, but instead apply general criminal law offences in a manner that is consistent with international human rights law obligations. Finally, the UNAIDS/UNDP Policy Brief recommends against the use of criminal law in any of the following circumstances:

• where there is no significant risk of HIV transmission;
• where the person did not know that he or she was HIV-positive;
• where the person did not understand how HIV is transmitted;
• where the person disclosed his or her HIV-positive status to the person at risk (or honestly believed the other person was aware of his or her status through some other means);
• where the person did not disclose his or her HIV-positive status because of fear of violence or other serious negative consequences;
• where the person took reasonable measures to reduce the risk of HIV transmission, such as practising safer sex through using a condom or taking other precautions; or
• where the person previously agreed on a level of mutually acceptable acceptable risk with the other person.
posted by jaguar at 2:54 PM on December 4, 2013 [1 favorite]

Later, the same UNAIDS report says,

The risk of HIV infection through various sexual acts is much lower than generally perceived. For example, the per-act risk of HIV infection for a woman who engages in unprotected vaginal intercourse with an untreated HIV-positive man—a circumstance considered to represent a higher risk of HIV infection—is estimated at 1 in 1250 (0.08%). Furthermore, recent evidence regarding the impact of antiretroviral treatment on the risk of HIV transmission calls for reassessing the nature of the risk posed by, and hence the criminal liability of, individuals who are on such treatment. The results of the HIV Prevention Trials Network (HPTN) 052 trial, which were released in early 2011, indicate a 96% reduction of the risk of HIV transmission within serodiscordant couples when the HIV-positive person is on effective antiretroviral therapy. This finding, together with other studies reporting dramatic reduction of sexual transmission of HIV from HIV-positive people who are on antiretroviral therapy to their partners, indicate that the risk of HIV transmission posed by individuals on effective HIV treatment should be considered insignificant in the context of criminal law.

...

The above circumstances [how likely the infected partner was to transmit the virus at the time of the sexual encounter], combined with the per-act risk resulting from particular sexual acts, should guide the determination of whether there is sufficient risk of HIV transmission to warrant the initiation of prosecution and conviction in a specific case. There is arguably no significant or substantial risk of HIV transmission when individuals take measures recommended by public health experts to prevent HIV transmission (such as using a male or female condom)....
posted by jaguar at 3:00 PM on December 4, 2013 [1 favorite]

The disturbing likelyhood, as far as I can tell, is that HIV is scarier in the public mind – largely because, now as in the 80s, we view it as an "other" disease

I would imagine it is scarier in the public mind because most of the public still regards it -only somewhat falsely- as invariably fatal, and horrific to endure.

That they do not think of HPV the same way is largely due to ignorance --the link between HPV and cancer is only recently publicized-- and the overwhelmingly high levels of HPV infection (which mean you'd basically have to walk around in sheer terror the minute you became even lightly sexually active--instead people just put their fingers in their ears and go la la la la la).
posted by like_a_friend at 3:01 PM on December 4, 2013 [2 favorites]

"Who's not? Isn't this what all our fundamental laws are based on? Why is murder illegal then?"

Because it kills someone? Because we don't, generally, want to be murdered? I mean, the argument that all law stems from morality only works with a definition of morality so broad as to be empty, and is such an obvious policy failure in so many areas, e.g. marriage for same-sex couples or, indeed, here with HIV testing.
posted by klangklangston at 3:35 PM on December 4, 2013

I would imagine it is scarier in the public mind because most of the public still regards it -only somewhat falsely- as invariably fatal, and horrific to endure.

And faggots. Don't forget faggots. HIV stigma is very tightly tied in this country to stigma and discrimination against gay men.

- Today, there are more than 1.1 million people living with HIV/AIDS in the U.S., including more than 510,000 who are Black.5

- Although Black Americans represent only 12% of the U.S. population,8 they accounted for 44% of new HIV infections in 20103 (Figure 1) and an estimated 44% of people living with HIV in 2009.4, 5 Blacks also accounted for almost half of new AIDS diagnoses (49%) in 2011 (AIDS being the most advanced form of HIV disease).1

- The rate of new HIV infections per 100,000 among Black adults/adolescents (68.9) was nearly 8 times that of whites (8.7) and more than twice that of Latinos (27.5) in 2010 (Figure 2). The rate for Black men (103.6) was the highest of any group, more than twice that of Latino men (45.5), the 2nd highest group. Black women (38.1) had the 3rd highest rate overall, and the highest among women.3

- HIV was the 4th leading cause of death for both Black men and Black women, ages 25-44, in 2009, ranking higher than for their respective counterparts in any other racial/ethnic group.9

- Three quarters (75%) of Blacks, ages 18-64, report ever having been tested for HIV. Blacks in this age group are more likely than Latinos or whites to report having been tested for HIV in the last 12 months (45% compared to 30% and 14%, respectively).15 Furthermore, estimates indicate that about 1 in 5 (19%) Blacks living with HIV do not know they are infected.5

Link

I'm sure that criminalizing and prosecuting people is the best way to get that 1 in 5 to get tested and into treatment, and for those who know their status to always disclose. There can't possibly be a better way.
posted by rtha at 3:36 PM on December 4, 2013 [5 favorites]

It is possible to both attempt to get people to test and disclose, and also to criminalize the willful deception of someone into sex. It doesn't have to be an either/or. What are your suggestions to get people to test and disclose, and why could they not withstand these laws?

When you send your kids to school, you have to show proof of vaccination to let them in. When you go to college, you have to show your TB test. For some jobs, you have to show your vaccinations. Why not add HIV to this? Why not add HIV to the routine medical tests that take place whenever you go for a physical? These things don't take a lot of effort, but would make knowledge much more widespread.
posted by corb at 3:41 PM on December 4, 2013 [3 favorites]

When you send your kids to school, you have to show proof of vaccination to let them in. When you go to college, you have to show your TB test. For some jobs, you have to show your vaccinations. Why not add HIV to this? Why not add HIV to the routine medical tests that take place whenever you go for a physical? These things don't take a lot of effort, but would make knowledge much more widespread.

Why, yes, I can just snap my fingers and do this without regards for the financial issues involved or the social stigmas that exist!

In all seriousness, though, can I then assume you support support the massive improvements and expansions of coverage in both private and government-run medical insurance that would be necessary to do this?
posted by zombieflanders at 3:50 PM on December 4, 2013

I'm not sure why that would be necessary - they haven't created massive improvements and expansions of coverage for the TB test, as far as I know. But maybe they have! And if so, feel free to let me know.
posted by corb at 4:06 PM on December 4, 2013

corb: "It is possible to both attempt to get people to test and disclose, and also to criminalize the willful deception of someone into sex."

This is true. And as someone who takes seriously the interest of morality in law, I can see the worth in doing this. I have a few more considerations, though.

For one thing - I think we're all kind of seeing this from narrower perspectives than perhaps we should.

On one side - I think we all admit that it's an egregiously terrible thing to knowingly expose someone to HIV without telling them, even if you do so with a condom on. We are arguing about whether it ought to be a crime in sort of an abstract way, but I wonder if that makes any sense. In our society in the US, we have a lot of sort of pseudo-crimes that are regulated in a low-level way by the state. It's illegal to park your car in front of a fire hydrant, for example. I feel like people in this thread might not be opposed to reducing the knowing, non-disclosed exposure of another person to HIV to the level of a parking ticket, with a significantly heightened charge if you actually intentionally infected another person.

If I may be permitted to discuss the relative quality of morality briefly: there are cases where we have cause to worry that the criminal will get away without punishment, that justice won't ultimately be done. That's not happening here. In these cases - when an HIV positive person exposes another person to HIV without telling them, and they don't end up infected - the "criminal" isn't getting off easy. I think this is the kind of low-motive, rare crime we can safely say it's a low priority for us to enforce against.

On the other side - I can see that severely criminalizing infection of other people might cause problems and hinder the work we're doing to prevent the spread of diseases, but at this point I feel pretty safe in saying that's a relatively academic concern thus far in the case of HIV. I'd be interested to hear if anyone knows how well-known this law is in society; I doubt there are many people, even among HIV patients, who are aware that exposing others without their knowledge can be a criminal offense. It seems shocking to us, I think, because we didn't know about it and find it kind of unbelievable. Obviously that could change. The cases seem to be piling up, and the more people hear that knowing you have HIV could land you in prison, the fewer people will want to get tested.

That's why it seems to me that the best solution seems to be to act quickly to reduce recommended sentences and dull the impact of these laws in order to make it clear that the government isn't going to go after HIV positive people harshly out of paranoia. This is easier than repealing the laws - all that needs to be adjusted are sentencing guidelines, and in some cases amendments need to be passed.

That seems like the most rational solution to me.
posted by koeselitz at 4:06 PM on December 4, 2013

/all the other vaccinations. Like chicken pox! I am so jealous that is vaccinatable now
posted by corb at 4:07 PM on December 4, 2013

When you send your kids to school, you have to show proof of vaccination to let them in

Nope. You can sign a piece of paper in most states that says you have a religious or any other moral objection to vaccine. And then if your child gets another child sick, you do not go to jail.
posted by roomthreeseventeen at 4:26 PM on December 4, 2013

I doubt there are many people, even among HIV patients, who are aware that exposing others without their knowledge can be a criminal offense.

I would hope that whoever is giving HIV test results in states that criminalize these behaviors would tell the patient, but I'm not tracking down any evidence that that's the case. But it would seem to be an ethical concern if they're not.
posted by jaguar at 4:27 PM on December 4, 2013 [1 favorite]

Even allowing for opt-outs of tests, which are much less numerous than one might imagine, you would still have a much greater percentage of the population getting tested.
posted by corb at 4:29 PM on December 4, 2013

This study (pdf) indicates that Alabama and North Carolina, both of which have mandatory disclosure laws, also require that patients be informed of those laws when they're given information that they're HIV-positive.

I recently read about concerns, though, about at-home HIV testing and how this sort of information should or could or would be given in that scenario.
posted by jaguar at 4:38 PM on December 4, 2013

I'm not sure why that would be necessary - they haven't created massive improvements and expansions of coverage for the TB test, as far as I know. But maybe they have! And if so, feel free to let me know.

Well, we're not testing for one TB, we're testing for STIs. And not just HIV, but all STIs, so as to be absolutely sure. Alrighty then...

If I don't have insurance, have two options: go to a clinic, or pay a lot of money at a hospital. The first depends largely on organizations like Planned Parenthood, who get much of their money from federal subsidies. Of course, they're allegedly crazed babykillers, so maybe that won't be an option for too much longer. The second is, well, a lot of money, and not a little time. Well, maybe a lot of time, since ensuring that everybody is getting a full STI workup is not all that quick. Besides, the labwork takes a couple of days at a decent doctor. Anyway, seems a but punitive to me, but different strokes for different folks, I guess.

But wait! That's not a problem after March 2014, because you're required to have insurance. Of course, Medicaid expansion--as long as the holy rollers don't strip STI coverage out of it--also means health care is free and available to millions more, so that helps too. But for someone lucky enough to be in the crushing poverty required for Medicaid, I can still thank the heavens for Obamacare's individual mandate, amirite? So, like most healthy, (relatively...I hope) young, unmarried people, I have fairly shitty health insurance. Getting a full STI workup whenever I get a physical is not as bad as without insurance, but I'd rather it was free. But if it was free, then the insurance companies would have to recoup the costs somehow, probably by making me pay more. Whatever. Here I am, with my crappy employer or bronze Obamacare exchange insurance, getting my STI tests, probably paying more in premiums or with higher deductibles. Lo and behold, something pops up. So now what? Treatment for a lot of STIs, especially HIV, is hella expensive. Somebody's gotta be paying for it somewhere. Either it's going to be me or the health insurance company, and I haven't seen evidence that they're generous folks. Like, at all. And that doesn't get into what happens if the Hobby Lobby case goes through, where I may not be able to get any of the testing (let alone treatment), because my employer thinks premarital sex is the devil's work, or that HIV is the gay plague, or that I sinned and deserve whatever I get.

As for the criminilization, I'm torn. The UNAIDS work that jaguar has posted gives detailed guidelines on what to do, which seems good enough for me. You want to lock up bugchasers (the ones looking to infect others maliciously), I could probably see a reason for it. Not that I think it would help much, seeing as how the nation's jails are themselves a hotbed of STIs. And it would of course be thousands or millions of dollars of taxpayer money. At the very least, tattooing their genitals like they're at Auschwitz is not on the table.

So as you can see, it's not just as easy as saying "we can make people test and disclose while locking them up for being assholes." There's a ton of stuff that needs to be done, and ripple effects from the actions as well as exterior issues.
posted by zombieflanders at 4:40 PM on December 4, 2013 [2 favorites]

As rtha points out, a growing number of people actually get cancer and die because of HPV, which is in itself a usually-harmless STD … Why isn't knowingly exposing someone to HPV a crime? The answer seems simple: because that would be a terrible way to curb a problematic disease.

That seems like a terrific way to curb it. Rather difficult to spread a disease if one isn't in contact with others.

I know I'd be right pissed if my sex partner infected me with any disease, let alone a cancer-causing one. You can be sure I'd pull out all the stops in pursuing legal retribution.

Informed consent is the very heart of the issue.
posted by five fresh fish at 4:56 PM on December 4, 2013 [3 favorites]

Because it kills someone? Because we don't, generally, want to be murdered?

If murder was illegal because it kills someone, then there wouldn't be so many ways of killing people that aren't illegal. And we don't, generally, want to be killed, whether it's by murder or not, so that can't be the reason either. What's the difference between murdering someone and kliling them by accident? Isn't the difference between them a moral one, and that's why it's also a legal one?

I mean, the argument that all law stems from morality only works with a definition of morality so broad as to be empty, and is such an obvious policy failure in so many areas, e.g. marriage for same-sex couples or, indeed, here with HIV testing.

I thought the idea behind the saying "don't legislate morality" was that morality WAS broader than legality--that it's okay if some things that are immoral are still legal, but that if something that is moral is illegal, that's almost always problematic. So that law stems from morality in the sense that it's a subset of it: ideally, everything that is illegal is a member of the set of immoral things.
posted by layceepee at 4:58 PM on December 4, 2013

In fact, I'll argue that consent is the only issue here.
posted by five fresh fish at 4:58 PM on December 4, 2013 [1 favorite]

What strain of HPV do you have, fff, and when was your last test?

/not really interested in knowing, just want to know if you know
posted by rtha at 5:00 PM on December 4, 2013 [1 favorite]

Maybe I roll oddly, but I just am not personally cool with non-consensual acts of any sort.

OK, but if you have unprotected sex with someone, give them HIV but you didn't know you were positive, no problem. if you do know you're positive, have an undetectable virus load, use a condom but don't disclose and there's no transmission, you're a sex offender? How is that fair?
posted by roomthreeseventeen at 5:14 PM on December 4, 2013 [1 favorite]

Mod note: If you can't discuss this without hypothetically sexing up other users, please rephrase and try again
posted by jessamyn (staff) at 5:20 PM on December 4, 2013

OK, but if you have unprotected sex with someone, give them HIV but you didn't know you were positive, no problem. if you do know you're positive, have an undetectable virus load, use a condom but don't disclose and there's no transmission, you're a sex offender? How is that fair?

If you can't figure out why denying your sex partners the ability to make an informed decision about whether or not to fuck you is a problem, that's incredibly fucked up and reflects a really disturbing attitude toward the people you're intimate with.
posted by Pope Guilty at 5:27 PM on December 4, 2013 [3 favorites]

If you can't figure out why denying your sex partners the ability to make an informed decision about whether or not to fuck you is a problem, that's incredibly fucked up and reflects a really disturbing attitude toward the people you're intimate with.

Okay, I can take the insult. I'm not talking about my own judgment. I'm talking about the legal punishment.
posted by roomthreeseventeen at 5:29 PM on December 4, 2013 [1 favorite]

I wonder if you could sue for the costs of treatment.
posted by Pope Guilty at 5:38 PM on December 4, 2013

me: “As rtha points out, a growing number of people actually get cancer and die because of HPV, which is in itself a usually-harmless STD … Why isn't knowingly exposing someone to HPV a crime? The answer seems simple: because that would be a terrible way to curb a problematic disease.”

five fresh fish: “That seems like a terrific way to curb it. Rather difficult to spread a disease if one isn't in contact with others. I know I'd be right pissed if my sex partner infected me with any disease, let alone a cancer-causing one. You can be sure I'd pull out all the stops in pursuing legal retribution. Informed consent is the very heart of the issue... In fact, I'll argue that consent is the only issue here.”

But it clearly isn't – right? Preventing the spread of the disease is an issue. Protecting public health is an issue. Allowing people to have safe, private sex lives of their choosing is an issue. These are all non-consent issues that are in play here. You can't just exclude all the other considerations because you think they don't matter.

I mean – in the case of HPV, putting this under government regulation alone would be insanely difficult and would constitute an egregious waste of public money. I could sit here and name half a dozen people among my friends who were either exposed semi-willfully to HPV or who have done the same to partners in moments of recklessness and felt bad about it later. And the complications of this are astronomical. For one: there is no accepted, conclusive HPV test for males. So men cannot know for sure whether they have HPV; they can only know whether previous partners had HPV, and even so, they have to rely on those past partners to tell them their sexual history. And many women don't – for some understandable (if misguided) reasons.

For example: many doctors counsel women not to tell male partners that they have had HPV. Yes, you read that right. I've met a lot of doctors who say this. Here's one example, but it's by no means an isolated case. And while I disagree with her in pretty strong terms, I understand her argument: HPV is very prevalent, and a prospective male partner probably already has had it even if he doesn't know it.

So you get into this jungle of difficulties; what if a guy has sex with another guy and doesn't tell him that his ex-girlfriend from five years ago once had HPV but it cleared? He could be carrying HPV without knowing it. He could pass it on, and nobody'd really know, unless the guy he is with ends up getting an anal pap smear (which is, let's be honest, unlikely.) What if a girl has clear pap smears for years, and is officially told by her doctor that she doesn't have HPV anymore, but it turns out to be wrong and she passes HPV to the next person she sleeps with? I think encouraging informing partners is a great thing here, but I can't think of how we could criminalize the lack of notification.

It might be possible – but you'll end up pouring billions of dollars into the effort. Those billions can and should be used instead on education about what informed consent means and on making testing free and accessible to all people, particularly the young people at risk. (And also on vaccinating young people against HPV, especially young boys, who are inexplicably and disastrously ignored when we pass out the Gardasil.)

I get that this is a consent issue. But there are a lot of borderline consent issues that can't be legislated. We can't make a law against telling a prospective sexual partner that you are monogamously married, for example.

If people are reckless to the level where they are actively and intentionally putting others in danger, and especially if they succeed in infecting others, then they are a danger to others physically, and there are already laws against that we can use against them. Otherwise – there are more important and useful things we can do to lessen the spread of HIV and other sexually transmitted infections.

corb: “When you send your kids to school, you have to show proof of vaccination to let them in. When you go to college, you have to show your TB test. For some jobs, you have to show your vaccinations. Why not add HIV to this? Why not add HIV to the routine medical tests that take place whenever you go for a physical? These things don't take a lot of effort, but would make knowledge much more widespread.”

Er – testing for HIV is one of the routine medical tests that take place when an adult goes for a "physical" (or for a "STD test," as we call them now.) It seems unnecessary to test children for HIV at the moment, so we don't; and children are the only people we have anything close to mandatory testing for. Why don't we have any mandatory medical testing for adults? Because adults in the US have privacy, guaranteed by the Constitution, and therefore aren't required to share their medical history or status with other people if they choose not to.

If you're saying adults should be encouraged more strongly to get routine STD tests every few years and especially after a breakup or a period of increased sexual activity, I agree completely. That's how I think we should spend the money we save on willing-exposure enforcement: on education and free testing for adults.
posted by koeselitz at 5:47 PM on December 4, 2013 [5 favorites]

Again, giving someone a virus should not be considered a crime.

Guess that International Convention On Bioweapons goes out the window.
posted by the man of twists and turns at 6:02 PM on December 4, 2013

I get that this is a consent issue. But there are a lot of borderline consent issues that can't be legislated. We can't make a law against telling a prospective sexual partner that you are monogamously married, for example.

Yes, actually, we completely and one hundred percent can. We have the power to make a lot of laws. Enforcing them would be difficult, but not necessarily even impossible. We only need the willpower to make it so. Extending the "gains" required by fraud cases to extend to sexual "gains" would automatically make much of this sort of pernicious lying illegal without even changing the system particularly much. The willpower just isn't there, though, because god forbid you have men unable to lie to women about their marital status and job or what have you.
posted by corb at 6:03 PM on December 4, 2013 [1 favorite]

And pouring all those resources and money into arresting, trying, convicting, and imprisoning people is clearly is much better use of money than education, research, and health care.

Where should we stop? TB is communicable. Hell, people who refuse to vaccinate against flu or whooping cough are responsible for epidemics that kill people. What about hepatitis?

I am totally unsurprised that you're willing to spend my tax dollars locking people up but if they get sick, well shit, they should just rely on family to take care of them.
posted by rtha at 6:15 PM on December 4, 2013 [5 favorites]

"You want to lock up bugchasers (the ones looking to infect others maliciously)"

Point of order, bugchasers are the (nigh mythical) people who want to be infected with HIV/AIDS.
posted by klangklangston at 6:29 PM on December 4, 2013 [3 favorites]

The willpower just isn't there, though, because god forbid you have men unable to lie to women about their marital status and job or what have you.

I think there was a recent case in which the "what have you" the man was charged with lying about was his religious and ethnic heritage. Which makes that a pretty slippery slope you are headed towards.
posted by layceepee at 6:34 PM on December 4, 2013

"If murder was illegal because it kills someone, then there wouldn't be so many ways of killing people that aren't illegal. And we don't, generally, want to be killed, whether it's by murder or not, so that can't be the reason either. What's the difference between murdering someone and kliling them by accident? Isn't the difference between them a moral one, and that's why it's also a legal one?"

There really aren't that many ways to kill someone that aren't illegal. There's justifiable homicide, there's sort of an allowance for accidental death, but that really doesn't go very far. Unless you're talking about "ways" as methods, that's not a strong contention.

Likewise for not wanting to be killed — most of the things that kill us are, indeed, illegal.

The difference between murdering someone and killing them accidentally — which, to be clear is distinguished from, say, negligent manslaughter — is culpability. If you're doing something that no one could have reasonably foreseen a risk, like, say, feeding someone with an unknown peanut allergy a PB+J and it kills them, you're not culpable because there was no way to reasonably foresee that your actions would lead to that result.

I mean, have you thought this through very much? Unless you're going to make a meta-argument that utilitarianism is itself the moral reasoning, you're not going to get very far. And if you are going to make that argument, you'll have to concede that every act could conceivably be a moral one, and thus impossible to distinguish.

I thought the idea behind the saying "don't legislate morality" was that morality WAS broader than legality--that it's okay if some things that are immoral are still legal, but that if something that is moral is illegal, that's almost always problematic. So that law stems from morality in the sense that it's a subset of it: ideally, everything that is illegal is a member of the set of immoral things."

The most famous instance of that phrase, which is, by the way, "You can't legislate morality," was Barry Goldwater voting against the Civil Rights Act.

But as a comparison, things go both ways: There is no serious claim that a parking ticket is because of a moral infraction. And the morass of civil legislation, as opposed to criminal, makes it very hard to claim that there's clear moral beliefs at play instead of a mix of custom, practicality and a few, occasional appeals to principle.

Beyond that, there's not a consistent morality to appeal to. Plenty of illegal things aren't immoral, plenty of immoral things aren't illegal, and there's not necessarily a lot of agreement about which is which, e.g. drug laws, sodomy and banking regulations.

So, no, the law doesn't stem from morality in any coherent sense, any more than morality stems from laws.

(The other point to realize is that it's begging the question. OK, so murder is illegal because it's immoral. Why is it immoral?)
posted by klangklangston at 6:46 PM on December 4, 2013 [3 favorites]

So it's okay to not disclose to a sexual partner that you have an STI unless you're unlucky enough to transmit it? The judgment comes not in the actions but in the chance?

Hell no, the action merits punishment as well, but punishment should be less when the harm that results is less. Not because the guy was better morally for being lucky, but because the law should recognize actions that increase or mitigate risk to the victim. As well, the successful transmission of HIV could be deliberate instead of accidental, and sentencing should maybe take that possibility into account. Lastly, someone who does this once and never again is a better person than someone who does it repeatedly until they infect someone. With someone actually being infected you can guess that there were quite likely multiple events that weren't caught because they didn't result in infection.

But a practical reason why this law might be problematic, is the following scenario. Some HIV+ guy in a state of impaired judgement has unprotected sex with someone (morally and legally very wrong), but then when they sober up they feel guilty enough to call the next day. Will this law make them less likely to inform their partner about the exposure because of the criminal liability?

I'm not sure if I'd classify this as a sex crime though, it seems to me to be more a case of reckless endangerment with sex thrown in, but I'm not going to make a strong argument against rape by deception, because I can see that point too. In any case, I'm not getting real bent out of shape about these kinds of laws as long as they aren't written in such a way as to punish people who are practicing informed consent.

That would be a really stupid argument. The point is that people have a right to decide whether they want to take a risk of exposure to a deadly virus if a condom breaks. They can't control whether the condom breaks; they can control whether they have sex. Hence, the necessity of informed consent.

For a moral philosopher or bio-ethicist it would be a stupid argument, for a defense attorney I fail to see what's stupid about it. I agree about the moral primacy of informed consent in human relations, I'm just not 100% sure he violated the law as written.
posted by BrotherCaine at 6:49 PM on December 4, 2013 [1 favorite]

Oh, hey, actual data. Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial. From the abstract:

People who lived in a state with a criminal law explicitly regulating sexual behavior of the HIV-infected were little different in their self-reported sexual behavior from people in a state without such a law. People who believed the law required the infected to practice safer sex or disclose their status reported being just as risky in their sexual behavior as those who did not. Our data do not support the proposition that passing a law prohibiting unsafe sex or requiring disclosure of infection influences people's normative beliefs about risky sex. Most people in our study believed that it was wrong to expose others to the virus and right to disclose infection to their sexual partners. These convictions were not influenced by the respondents' beliefs about the law or whether they lived in a state with such a law or not. Because law was not significantly influencing sexual behavior, our results also undermine the claim that such laws drive people with and or at risk of HIV away from health services and interventions.
posted by jaguar at 7:02 PM on December 4, 2013 [8 favorites]

I would be okay with attempts to mitigate the risk taken as a mitigation for sentencing, or warnings given mitigating sentencing, or suchlike.

I think there was a recent case in which the "what have you" the man was charged with lying about was his religious and ethnic heritage. Which makes that a pretty slippery slope you are headed towards

No, actually it doesn't. Do I think that people making decisions on who to sleep with based on what religion or ethnicity the other person is are strange? Sure, I do. Do I think that any reason someone might possibly not want to sleep with another person is wrong? No, because everyone has the right to informed consent no matter what their criteria are, and to not be lied to for someone else's sexual gain. No one has the right to lie to someone about their status in an attempt to sleep with someone else, no matter what the lie is about. I don't know why this is hard.

No one has a "right to sex" with someone else. Not a single person on this earth has a "right to sex". If someone doesn't want to sleep with you, you have no "right" to sleep with them, and definitely no right to trick them into it.
posted by corb at 7:08 PM on December 4, 2013 [2 favorites]

The most famous instance of that phrase, which is, by the way, "You can't legislate morality," was Barry Goldwater voting against the Civil Rights Act.

We keep forgetting MLK's rejoinder:

"But we must go on to say that while it may be true that morality cannot be legislated, behavior can be regulated."

posted by Pope Guilty at 7:09 PM on December 4, 2013 [2 favorites]

Criminalisation of HIV Exposure and Transmission: A Global Review (pdf):

• There appears to have been an assumption that introducing new laws criminalising exposure and transmission can have beneficial public health outcomes. There is no evidence to support this and it is therefore inadequate and insufficient as a justification for the use of criminal law.

• There is evidence of widespread over-criminalisation of people living with HIV – not only through the criminalisation of both sexual and non-sexual exposure and transmission, but through broad and over-inclusive fault requirements (i.e. not just intention, but recklessness and negligence).

• There is insufficient, though in some regions increasing, recognition that undetectable viral load resulting from effective anti-retroviral treatment (ART ) should be taken into account in allegations of exposure, and should, for example, defeat claims that the defendant was reckless or negligent....

• Women are disproportionately impacted by criminalisation provisions. This is not only because women may be more likely to know their HIV status (as a result of ante-natal testing) but because it may be more difficult for them to negotiate safer sex (something which also applies to younger people living with HIV).
posted by jaguar at 7:39 PM on December 4, 2013 [6 favorites]

me: "I get that this is a consent issue. But there are a lot of borderline consent issues that can't be legislated. We can't make a law against telling a prospective sexual partner that you are monogamously married, for example."

corb: "Yes, actually, we completely and one hundred percent can. We have the power to make a lot of laws. Enforcing them would be difficult, but not necessarily even impossible. We only need the willpower to make it so. Extending the 'gains' required by fraud cases to extend to sexual 'gains' would automatically make much of this sort of pernicious lying illegal without even changing the system particularly much. The willpower just isn't there, though, because god forbid you have men unable to lie to women about their marital status and job or what have you."

Hold on. You want to make it illegal for people to lie to prospective partners about their job? Really? I guess so, because you're even clearer below:

"... everyone has the right to informed consent no matter what their criteria are, and to not be lied to for someone else's sexual gain. No one has the right to lie to someone about their status in an attempt to sleep with someone else, no matter what the lie is about. I don't know why this is hard."

I am genuinely not trying to make a slippery slope argument when I say that making lying illegal for sexually-active adults - that's what you're proposing, a ban on lying for sexually-active adults, whether they're monogamous or whatever - would be both tremendously difficult and probably disastrous. I guess if you want I can try to explain why I think banning lying is problematic.

For now, suffice it to say that - this is why "informed consent" has to be an actual, concrete thing. It will obviously vary somewhat from person to person, with differing shades of needs and requirements, but it must be a shared, basic thing we all understand and agree to. It has to have a baseline of content, like "share your previous STD infections and an outline of your sexual history," and it has to be something that everyone can understand and do.

Otherwise we really should never have sex again. Particularly married people. Because married people lie to each other all the time, and often for good reasons.
posted by koeselitz at 8:19 PM on December 4, 2013 [3 favorites]

corb: "No one has a 'right to sex' with someone else. Not a single person on this earth has a 'right to sex'."

This is nonsense. You're treating this right - it is a right, guaranteed by the Constitution - as though it were an individual right, but that does not make it go away. A person has a right to have sex with themselves. And two people who would like to have sex with each other have a right to do so. That is part of the Constitution, secured by the due-process guarantee of privacy, as the Supreme Court has guaranteed it. It is up to us to decide where the limits of that right are - all rights have limits, properly and correctly - but we absolutely cannot annihilate it.
posted by koeselitz at 8:28 PM on December 4, 2013

Wait, people would avoid testing for HIV for fear of having to inform other sexual partners that they have the disease?

I thought treatment was usually more successful the earlier it is started, so I always thought people would want to get tested so that they didn't get sick/possibly die.
posted by that girl at 9:22 PM on December 4, 2013

Nobody thinks they have it, because people who have it are filthy, gross criminals, and they're not a filthy, gross criminal. So why bother getting tested?
posted by klangklangston at 9:39 PM on December 4, 2013

that girl, when I was looking up studies, the phrase "Take the test, risk arrest" showed up a fair amount. There's definitely an awareness that plausible deniability is legally safer than knowing.
posted by jaguar at 9:43 PM on December 4, 2013 [3 favorites]

IMO, if I were to ask whether you're married because, hey, cheating on your spouse is greasy shit that I want no part in playing, and you lie to me 'cause you just wanna fuck, I should be able to sue your ass off.

Tolerance of non-consensual acts ineeds to stop. It destroys personal autonomy. Ain't nobodies business what consenting adults do — but it sure as hell needs to be consenting.
posted by five fresh fish at 11:40 PM on December 4, 2013 [1 favorite]

Do you know how horrifying this crusade sounds when you take it to it's logical extent? People who are virgins will get dragged into court for lying about it. So will men and women who lie about their age, or ethnicity, or place of birth, or address, or job. The list goes on and on. Actually, strike that: since we're talking about a case where it wasn't asked for and never disclosed, you're criminalizing just looking different. Imagine being a 19 year old virgin who didn't mention it because of the stigmatization of virginity in young adults, and ends up being a registered sex offender. Or a 35 year old woman who looks 25 and now has to go to prison for it. Or a pale Latino guy that made another guy think he was White getting his fucking dick tattooed. And what will be even worse is that you'll be rewarding people for being racist, or enforcing age and gender rules, or perpetuating myths, or in some cases for no good reason at all.

We've gone way off the rails here, and really we should just get back to the STI issue, because I feel like you both have an ironclad need for consistency even when it defies logic and current law. This is one of those times where a compromise needs to be found. Options have been offered, perhaps we should discuss those instead of going down a path of insane intrusion into everyone's sex lives.
posted by zombieflanders at 4:17 AM on December 5, 2013 [7 favorites]

I thought treatment was usually more successful the earlier it is started, so I always thought people would want to get tested so that they didn't get sick/possibly die.

Denial. It's not just a river in Egypt.

People think they're not really at risk, so they don't get tested. The think they're not really at risk because:

- They (if male) only top
- They're not really gay
- Only bad people get AIDS
- They're not really addicted, and his works were clean
- S/he really loves me and we're faithful to each other
- Who cares, I'm gonna be dead by 30 anyway
- If my family finds out, they'll kick me out/divorce me/take my kids away

This is people and sex we're talking about. Of course people lie - to themselves, to other people. Of course they want to maintain some amount of plausible deniability (for themselves, for other people). Go read relationshipfilter askmes; people have trouble communicating about the simplest things that are not infectious diseases; they have trouble interpreting messages that seem crystal clear to anyone reading the askme. People tell blatant and obvious lies about their dress sizes.
posted by rtha at 6:42 AM on December 5, 2013 [5 favorites]

I wonder if part of this debate is crippled by our lack of a term for a person who is HIV+, but has 0 viral load. Our collective adjectives go back to the epidemic where you were HIV-, HIV+ or had AIDS. All you could do if you were HIV+ was wait to get AIDS and die. That is not the case in first world countries anymore. My understanding is that someone who is HIV+ and is under proper treatment has very nearly the same test results as someone who has never been infected.

Not saying you shouldn't have to disclose this status, whatever it should be called, to any sexual partners, because you absolutely should. But there should be more room for a grey area in the middle.
posted by fontophilic at 6:47 AM on December 5, 2013 [3 favorites]

I read the Buzzfeed/ProPublica article. I have some mixed feelings. Nick Rhoades comes off as a basically decent fellow. His punishment was appalling. He was initially placed in solitary confinement. Even the terms of his reduced sentence of 5 years probation are draconian:

On Sept. 11, 2009, Harris granted Rhoades’ application for a sentence reduction, lowering his sentence to five years of supervised probation. Rhoades, who now lives in Waterloo, must obey an 11 p.m. curfew, wear a GPS monitoring bracelet, cannot use social media sites such as Facebook or Twitter, cannot drink alcohol and must obtain permission from a probation officer to leave the county, even to visit his parents in nearby Plainfield. He remains a registered sex offender and, as a convicted felon, he cannot vote.

That is ridiculous.

But. He lied to a young man about his HIV status (it wasn't just that he didn't disclose; the article said that he identified himself as HIV negative on his dating profile, and later confirmed that with Adam), so that he could have sex. I think that is a serious violation, and while the sentence in this case was a huge overreach, I am not comfortable with the law having nothing to say about this.
posted by Asparagus at 7:42 AM on December 5, 2013 [4 favorites]

“When we talked about H.I.V. in sex ed, the class started freaking out,” said Alex, 20, who was born in St. Croix but raised in New York. “One guy said, ‘We ain’t no faggots; why do we have to learn this stuff?’ So the teacher stopped and moved on to another topic.”

Stigma. Ignorance. Lack of health insurance. Vulnerable to exploitation and abuse. Depression and fatalism. We can totally arrest and prosecute our way out of this problem.
posted by rtha at 9:56 AM on December 5, 2013 [4 favorites]

rtha, the NYTimes article illustrates many important issues, but I don't see how any of them make it less bad to deceive someone and thereby put them at risk of contracting HIV.
posted by Asparagus at 10:32 AM on December 5, 2013 [2 favorites]

My argument is that they do not make it less bad. My argument is that trying to arrest your way out of a public health problem will not actually solve the problem and will create other, worse problems. We have 40 years' worth of evidence (see: war on drugs) for this.
posted by rtha at 10:45 AM on December 5, 2013 [2 favorites]

Because the stigma of being gay, along with poverty and lack of health insurance, makes it hard to get tested; in addition, criminalizing HIV/AIDS does nothing to promote treatment or informed consent, and may in fact make it more difficult.
posted by zombieflanders at 10:47 AM on December 5, 2013 [1 favorite]

There's also stigma and difficulty getting treatment with alcoholism, but drunk driving is against the law.
posted by Asparagus at 10:55 AM on December 5, 2013

So is deliberate infection. The problem is that there are degrees of punishment and a whole social and legal structure that makes you essentially a sex criminal and a felon for being HIV+, with no differentiations made for transmissibility and a number of other factors. The talk in this thread involving literally branding people for being HIV+ illustrates exactly that problem. There also seems to be a resistance for dealing with the problem of discovery and notification because punishment is apparently the only deterrent.
posted by zombieflanders at 11:03 AM on December 5, 2013 [1 favorite]

What if you're not trying to arrest your way out of a public health problem, but arrest your way out of a consent problem? I really fail to see how there can be any benefit whatsoever to a society from permitting people to lie their way into sex in it.
posted by corb at 1:26 PM on December 5, 2013 [1 favorite]

Stigma, ignorance, discrimination and fear are all part of the public health problem that leads to lack of disclosure and unwillingness to get tested. Pretending like it's some totally separate thing is missing the point.

Do either of you care that the PDF jaguar linked to here does not seem to show any evidence that criminalization encourages either disclosure or testing, and that it disproportionately impacts especially vulnerable populations (women, poor people).

I have seen no evidence that states with criminalization laws have more people who disclose or get tested. I have seen no evidence that these laws prevent the "consent problem." If there are links to such I would like to read them.
posted by rtha at 1:46 PM on December 5, 2013 [3 favorites]

I will not (continue) to argue with someone who refuses to acknowledge actual evidence, who won't be bothered to go find evidence they do find acceptable, who thinks they know better than any of the epidemiologists, researchers, or public health policy people in this thread, and who simply wants to punish bad people and damn the consequences. This is you, and I know it is, because only someone with a profound lack of knowledge about this epidemic could say "There's nothing about being poor or being a woman that makes it harder for you to disclose your status."

I took this thread out of my recent activity yesterday, but I'm really, truly out now. I won't try to logic someone out of a position they didn't educate themselves into. I'll leave that to people with more patience than I have.
posted by rtha at 2:25 PM on December 5, 2013 [3 favorites]

There is nothing about being poor or being a woman that makes it harder to disclose your status as long as you're willing to have the other person not sleep with you. Really, it's remarkably easy to disclose, as long as you disclose way in advance. If the other person isn't into sleeping with HIV+ people, they will steer well clear and be glad for the warning.

But more importantly, that wasn't what jaguar's PDF said at all. It said that it was harder for younger people who have been living with HIV for a while to negotiate safer sex, not that it was harder for them to disclose.

Jaguar's paper actually does have some fascinating points - such as:

What is particularly noteworthy is that the three highest countries in Europe as regards criminalisation rates are the three highest scoring countries with respect to trust of other people. It may be, therefore, that breach of trust (failure to disclose HIV status plus exposure or transmission) will provoke a more extreme reaction than it will in countries where there is less mutual trust between people (and where people may be less shocked at people lying or failing to tell the truth)

Really, the paper overall deserves to be used as more than just a bludgeoning point in an internet argument, it's a fascinating read.
posted by corb at 3:45 PM on December 5, 2013

I also think that the lack of a deterrent effect is not by itself good enough justisfication to get rid of the criminal prosecution of a given act. Deterrence is only one of the functions of a criminal justice system.
posted by Asparagus at 4:07 PM on December 5, 2013 [1 favorite]

"Not really, no. I also wouldn't care if life sentences didn't deter murder: society needs to condemn and punish criminal behaviour, whether or not criminals respond rationally to that sanction. "

That's absolutely, literally idiotic. Why does society "need" to do that if it doesn't solve anything?

We don't execute people for double parking, much as that would quiet my murderous homunculus.

I mean, unless you're just going with the circular punish because illegal illegal because MUST PUNISH.

"Don't flatter yourself that your belief that people shouldn't be sanctioned for lying to their sexual partners and potentially infecting them with a deadly disease is a logical position, just because you can find some hack with a PhD who agrees with you."

Aww, horseshit. Her position is that MORE PEOPLE WILL DIE or be seriously disadvantaged for absolutely no return because of a fixation on punishment beyond actual public health goals.

And man, what a chip on your shoulder about academics! Can you show me on the doll where the dissertation touched you?
posted by klangklangston at 4:32 PM on December 5, 2013 [3 favorites]

"Deterrence is only one of the functions of a criminal justice system."

Right, and the rest are mostly barbaric holdovers from days when life was demonstrably shittier. Punishment does not make victims whole, it does not prevent other victims, and the only rationale you're left with is that it demonstrates the power of the state.

Seriously, these are fucking religious views both you and Dasein are espousing, and like the substantial majority of religious thinking, they're utterly irrational and based on make-believe. Views like these make America worse without a concomitant benefit! They literally only exist to stroke a ridiculous emotional trigger.
posted by klangklangston at 4:36 PM on December 5, 2013 [2 favorites]

Addressing it with criminal sanctions is appropriate and complements, but does not preclude, a public health approach to HIV prevention.

It's an easy bet that pretty much any public health approach that we were to offer here to complement horrific criminal sanction would be dismissed out of hand. After all, any attempt to point them out has been met with indifference or silence or suspicion, because why try something that works when you can burn the witches?
posted by zombieflanders at 4:42 PM on December 5, 2013

Okay, well then why don't we just decriminalize rape too? Or murder? Unless we're able to produce peer-reviewed literature that shows there's a statistically significant deterrence effect?
posted by Asparagus at 4:48 PM on December 5, 2013

Can you show me on the doll where the dissertation touched you?

No offense, man, but I'm not sure the proper response to people talking about a form of rape is to minimalize child sexual abuse. I know you're heated, but still.

Also:

Punishment does not make victims whole,

Many victims would heartily disagree. It is not unheard of to have "That man is behind bars" be met with a sigh of relief - that the pain has been heard, answered, and remedied to the best of the state's ability.
posted by corb at 5:09 PM on December 5, 2013

"Okay, well then why don't we just decriminalize rape too? Or murder? Unless we're able to produce peer-reviewed literature that shows there's a statistically significant deterrence effect?"

ZOMG WE CAN!

Criminalizing behavior does have some significant ability to decrease the prevalence of some acts. Or, more to the point, punishment does have a deterrent effect in some cases. However, this has not been shown to be one of them, and there are significant reasons why it's counterproductive.

Seriously, do you think that no one has ever tried to look at how sentencing changes from jurisdiction to jurisdiction impact crime?

"Many victims would heartily disagree. It is not unheard of to have "That man is behind bars" be met with a sigh of relief - that the pain has been heard, answered, and remedied to the best of the state's ability."

Three points: First off, that sigh of relief is not making the victim whole. To give the clearest example, murder, the victim is dead. No matter what the sentence is, the victim will not become not-dead.

Second, victims are terrible judges of justice. That's, in fact, one of the big reasons we have things like rule of law, so that impartial parties decide what justice is, rather than victims. Because otherwise, you tend to spiral off into endless, unwinable feuds.

Third, the sigh should come because the criminal isn't able to commit another crime, not because they're being punished. That's the theory behind why we incarcerate people. Otherwise, we'd just lop a hand off. (And even beyond that, surveys of victims have shown that ultimately the vengeance is pretty hollow and unsatisfying.)

From a policy perspective, the two main points of criminal punishment are: Deterring others and preventing the criminal from reoffending.

Everything else is emotionally fulfilling but practically useless.
posted by klangklangston at 5:26 PM on December 5, 2013 [2 favorites]

From a policy perspective, the two main points of criminal punishment are: Deterring others and preventing the criminal from reoffending.

Exactly. (I am glad to see that you've come around to the POV that there are other non-barbaric functions for the criminal justice system.) While I think the punishment should have been closer to a $1,000 fine than a 25-year prison sentence, I'm willing to bet that after going through this ordeal Nick Rhoades will not lie to his future partners about his status.
posted by Asparagus at 5:45 PM on December 5, 2013

"(I am glad to see that you've come around to the POV that there are other non-barbaric functions for the criminal justice system.)"

Which is why I qualified it with "mostly."

"While I think the punishment should have been closer to a $1,000 fine than a 25-year prison sentence, I'm willing to bet that after going through this ordeal Nick Rhoades will not lie to his future partners about his status."

Again, that has to be weighed against the cost of criminalization. If you prevent one person from having fairly low-risk sex without full informed consent but do so at the cost of increased risk of someone who is HIV+ not bothering to tell their partners because of fear of prosecution.

There are other arguments against it laid out in that PDF, with actual data. Criminalizing things like this is bad from a public health perspective, meaning more people will get HIV, and more people with HIV will be treated later, which has real deleterious health effects. Is your myopic focus on Rhoades worth the suffering of those other people to you?

Oh, and I missed this earlier: It said that it was harder for younger people who have been living with HIV for a while to negotiate safer sex, not that it was harder for them to disclose. "

No, that's not what it said. It said: "Women are disproportionately impacted by criminalisation provisions. This is not only because women may be more likely to know their HIV status (as a result of ante-natal testing) but because it may be more difficult for them to negotiate safer sex (something which also applies to younger people living with HIV)."

Emphasis mine. Women are less likely to be able to have safer sex, leading to higher infection rates. Not that it's harder for them to negotiate safer sex after testing positive, which would make absolutely zero sense. (It would be easier to have a partner wear a condom if you had HIV, because they wouldn't want HIV.)
posted by klangklangston at 6:05 PM on December 5, 2013 [1 favorite]

Again, that has to be weighed against the cost of criminalization. If you prevent one person from having fairly low-risk sex without full informed consent but do so at the cost of increased risk of someone who is HIV+ not bothering to tell their partners because of fear of prosecution.

Huh? The prosecution is if you don't tell your partner.
posted by Asparagus at 6:18 PM on December 5, 2013

The authors of the pdf were coming at the issue with the assumption that people with HIV who were practicing safer sex and doing other things to mitigate their chance of transmitting the virus, like taking medication, shouldn't be criminalized at all, even if they don't disclose, because the risk of transmission is so low. So I think the point is about HIV+ women and people in poverty being overly criminalized, because they're going to be more likely to engage in higher-risk sex because they don't have the power to negotiate low-risk sex (and it doesn't say this explicitly, but I think it's reasonable to add in that they're more likely to be the victims of violence if they do disclose).
posted by jaguar at 6:20 PM on December 5, 2013

I think walking around with the flu without a face mask, a la Japanese habit, should be criminalized. Or at least subject to a fine. I would never ever consent to catch your cold, why the hell should you ever be allowed to pass it on to me? Your rights end where my nose begins. You wear the mask, so the rest of us don't have to.

It's not legislating morality, it's legislating health safety and saves us omg so much in lost productivity and lifespan.
posted by five fresh fish at 9:26 PM on December 5, 2013

And wash your hands more often, dammit! Especially before you eat!
posted by five fresh fish at 9:33 PM on December 5, 2013

Huh? The prosecution is if you don't tell your partner.

The fear cited in the paper is that by revealing HIV status after having sex. If the other party doesn't know, and you are at risk of prison if they do know, you have a powerful incentive not to tell them after you've had sex.

Or, from TFA:

Even just the fear of prosecution has had consequences for people with HIV. In New York, one HIV-positive woman interviewed by ProPublica said she didn’t report being raped because her attacker threatened to press charges for not disclosing her status. (New York does not have an HIV disclosure law, but the woman said she didn’t know that and feared prosecution because she’d heard of cases elsewhere.)

"I think walking around with the flu without a face mask, a la Japanese habit, should be criminalized. Or at least subject to a fine. I would never ever consent to catch your cold, why the hell should you ever be allowed to pass it on to me? Your rights end where my nose begins. You wear the mask, so the rest of us don't have to. "

Yeah, no, you're a crank. Think about the governmental intrusion it would take to enforce that. Think about all the wasted time and money to do so.

As with many things, we could prevent them entirely but the cost is stupid high and the benefit's not worth it, no matter how much, "There outta be a law!" fist-shaking you do.
posted by klangklangston at 10:17 PM on December 5, 2013

five fresh fish: And wash your hands more often, dammit! Especially before you eat!

You mean that thing the government does regulate, if you are in a position where you are commercially preparing food for other people? Actually, now that I think of it, there are a ton of situations where the government steps in to prevent the spread of disease, if the disease is reasonably serious and there are effective prevention measures that can be put in place. You can be quarantined, there are lots of professions that have to get tested for TB, and so forth.
posted by Mitrovarr at 10:49 PM on December 5, 2013 [1 favorite]

Asparagus: "Okay, well then why don't we just decriminalize rape too? Or murder? Unless we're able to produce peer-reviewed literature that shows there's a statistically significant deterrence effect?"

Because rape and murder are significant and widespread problems where the criminals are likely to escape justice and the crime is likely to spread if the behaviors are decriminalized. I appreciate that justice demands more than just deterrent, but as I said above we have to make practical considerations.

Honestly, I can't believe we're still spinning our wheels here. Asparagus, all of us - you, me, everyone else - we all agree on this, pretty much. It's bad to expose other people to HIV without their consent. Maybe it should be a crime. But it should be a crime with a fitting punishment that makes sense in proportion to each case. A person who intentionally manages to infect another person with HIV deserves 25 years in prison. A person who simply attempts to hide his HIV status, but also seeks to prevent infection, deserves a lesser sentence, and (in many cases) might not deserve a sex-offender status. This depends on the case, but that doesn't mean it's not a crime; even in states where this specifically isn't against the law, current laws against willfully endangering others probably apply.

All that is necessary here is intelligence and balanced equity in rendering a just sentence. Twenty-five years in prison is not a just sentence for this crime.

klangklangston: "Punishment does not make victims whole..."

corb: "Many victims would heartily disagree. It is not unheard of to have 'That man is behind bars' be met with a sigh of relief - that the pain has been heard, answered, and remedied to the best of the state's ability."

A sigh of relief, maybe - but any victim of a crime who believes that punishment will make them whole or fix everything and make it as though the crime never happened is lying to themselves. This is part of the definition of what crime is: an irreparable wrong which humans aren't supposed commit.

There is some small relief to be had for victims of crimes in seeing that society as a whole comes together and both tries to set the wrong right as far as is possible and attempts to see the crime punished. But that is a very limited relief; it's limited by the extent to which the victim can generally be satisfied in seeing society see a benefit they can't go back in time and enjoy, which for many people is tough.

Regardless of all else, satisfaction of the victims is an auxiliary good that emphatically should not be the aim of a system that actually intends to do justice. Victims of crimes are often very. Very confused; they think they want revenge, they think they want to see the criminal hurt deeply, and they believe seeing that will give them joy and make them happy. They are wrong, and we can't let their sentiments get in the way of actual justice.
posted by koeselitz at 10:59 PM on December 5, 2013 [2 favorites]

Think about the governmental intrusion it would take to enforce that. Think about all the wasted time and money to do so.

Think about the cost in not doing so. It's orders of magnitude less expensive to prevent disease than it is to allow it.

And, again, consent. Say I'm the kind of asshole to come to work sick. Do you consent to receive it? Should you have to? If you do not consent, should I not face consequences?

All the more so if I non-consensually spread diseases worse than flu.
posted by five fresh fish at 12:22 AM on December 6, 2013

People who come to work sick with the flu should be thrown into a maximum-security prison facility for several years. LOCKIN EM AWAY IS THE ONLY WAY THESE PREVERTED MAGGOTS IS GONNA LEARN.
posted by Blazecock Pileon at 1:08 AM on December 6, 2013 [4 favorites]

Actually, now that I think of it, there are a ton of situations where the government steps in to prevent the spread of disease, if the disease is reasonably serious and there are effective prevention measures that can be put in place.

Because apparently you missed this part of the article:

That’s not a surprise, because Rhoades used a condom.

And medical records show he was taking antiviral drugs that suppressed his HIV, making transmission extremely unlikely. A national group of AIDS public health officials later submitted a brief estimating that the odds of Rhoades infecting Plendl were “likely zero or near zero.”

Would you look at that, here we have government officials pointing out that he was actually doing a good job of preventing the spread of disease and that he was using effective prevention measures. And not just any random government official like, say, a prosecutor in an Iowa county, but government officials who are considered experts on diseases, and this disease in particular.

Nah, you know what, that Iowa prosecutor definitely knows better than them, they probably all use pretty crap methodology and a huge amount of editorializing in their work. A buncha social scientists making numbers say what they want them to say, the lot of 'em.
posted by zombieflanders at 5:13 AM on December 6, 2013 [2 favorites]

Would you look at that, here we have government officials pointing out that he was actually doing a good job of preventing the spread of disease and that he was using effective prevention measures. And not just any random government official like, say, a prosecutor in an Iowa county, but government officials who are considered experts on diseases, and this disease in particular.

Nah, you know what, that Iowa prosecutor definitely knows better than them, they probably all use pretty crap methodology and a huge amount of editorializing in their work. A buncha social scientists making numbers say what they want them to say, the lot of 'em.

And yet there was still a risk, however slight, and it was a violation of Rhoades' partner's rights to be made to take that risk without his consent. If the risk of transmission was really so slight or nonexistent, Rhoades shouldn't have had any problem with disclosing that to his partner.
posted by Pope Guilty at 5:51 AM on December 6, 2013 [1 favorite]

People who come to work sick with the flu should be thrown into a maximum-security prison facility for several years.

Now that's what I'm talking about. Let's final fucking solution these selfish assholes. Whole g.d. office ends up bedridden for days because Mr. I'm-so-important paperpusher had to express his macho? Death is too kind.
posted by five fresh fish at 6:48 AM on December 6, 2013

Mod note: Maybe wrap it up with this "kill em all" line of discussion?
posted by jessamyn (staff) at 7:41 AM on December 6, 2013 [3 favorites]

Women are less likely to be able to have safer sex, leading to higher infection rates. Not that it's harder for them to negotiate safer sex after testing positive, which would make absolutely zero sense. (It would be easier to have a partner wear a condom if you had HIV, because they wouldn't want HIV.)

Right, that's kind of exactly what I was saying, though. I'm saying the fact of having higher HIV+ rates does not actually make it harder to disclose to new partners, nor does it lead to a higher rate of violence, as long as you're willing to have sex with far less people. The threat of violence, as I understand it, is mostly centered around people who do not initially disclose, and then disclose or are discovered later in the relationship. And that is real - but if the push for disclosure is pre-sex, not after, this does not become a problem.

I think the real issue though is that the stigma talked about above is real. I would say a majority of people would prefer not to have sex with someone who discloses that they are HIV+, which means people feel unfairly denied of opportunity. I am only arguing that they had no right to that opportunity in the first place, and that if someone would prefer not to have sex with someone with HIV, then people who know they have HIV should stay away and not try to deceive them.
posted by corb at 8:31 AM on December 6, 2013

"Think about the cost in not doing so. It's orders of magnitude less expensive to prevent disease than it is to allow it. "

o_0

No, in order to have police interaction and incarceration for coming to work sick would require a massive increase in infrastructure. It's incredibly common, and police can't even necessarily keep up with the real crime that exists. On this, you just don't seem to have any idea what you're talking about.

"The threat of violence, as I understand it, is mostly centered around people who do not initially disclose, and then disclose or are discovered later in the relationship. And that is real - but if the push for disclosure is pre-sex, not after, this does not become a problem."

No, from the pdf, it's mostly centered on women who do sex work who have an increased risk in being beaten or killed if they disclose prior, as they're more likely to be seen as worthless and legitimate targets for aggression. Just like how sex workers are more likely to be the victims of sexual assault.

Again, read the actual paper. Your understanding is largely wrong.
posted by klangklangston at 9:49 AM on December 6, 2013 [2 favorites]

A couple hypotheticals, some from the article:

If a woman who has HIV is raped, should she be considered criminally liable for exposing her rapist to HIV?

If a woman is an abusive marriage, contracts HIV from an outside source (needle, affair, blood transfusion, whatever), and is reasonably certain her husband will kill or severely beat her if she discloses her new HIV status, should she be considered criminally liable for exposing her husband to HIV?

If a man who has HIV spits on a police officer or prison guard -- an act that has 0% chance of transmitting HIV -- should he be criminally liable for exposing the officer to HIV?

If a man who has HIV has consensual sex with a partner in a way in which HIV is almost completley unlikely to be transmitted, like performing oral sex, should he be held criminally liable for exposing his partner to HIV?
posted by jaguar at 10:12 AM on December 6, 2013 [2 favorites]

...as long as you're willing to have sex with far less people.

And you're missing the point that to people who have less power and privilege, "just not having sex" isn't the same thing as to you. Maybe having sex means you get a bed to sleep in that night. Maybe having sex means a night away from an abusive family. Maybe having sex means you get access to a person who will look out for you, or provide for you. Sex isn't just a shrewd transaction between two rational actors. Sex is a way to gain social privilege. You wouldn't say "wearing a ratty t-shirt and jeans to a job interview is very easy, as long as you're willing to get less job offers" to someone who has no other clothing.
posted by fontophilic at 10:31 AM on December 6, 2013 [4 favorites]

HIV virus returns after cure hope rose: 2 Boston patients had transplants of marrow, halted powerful drugs
posted by homunculus at 2:11 PM on December 6, 2013 [1 favorite]

And some perspective of how far we have come: The Stunning Way The White House And Reporters First Reacted To The AIDS Crisis

13 Times The Reagan White House Press Briefing Erupted With Laughter Over AIDS
posted by homunculus at 2:18 PM on December 6, 2013

(I'm actually really interested in answers to my questions above, from the folks who are very pro-criminalization. I'm not trying to be sarcastic or do a Gotcha!; I really wonder where you stand on edge cases, and how that fits in with your logic on the issue overall.)
posted by jaguar at 2:30 PM on December 6, 2013

(I'm actually really interested in answers to my questions above, from the folks who are very pro-criminalization. I'm not trying to be sarcastic or do a Gotcha!; I really wonder where you stand on edge cases, and how that fits in with your logic on the issue overall.)

Okay. No, no, no, and on the assumption that he doesn't disclose his HIV+ status, or as in this case actively and repeatedly lies about that status, absolutely yes. Because that's the only situation of the four where a person is tricking other people into having sex with them without informed consent. He shouldn't just be liable for exposing someone, he should be guilty of sexual assault.
posted by kafziel at 2:47 PM on December 6, 2013 [3 favorites]

My views pretty much line up with kafziel's ^
posted by Asparagus at 2:51 PM on December 6, 2013

On the other end of the spectrum, I wonder what the anti-criminalization folks would think about a case where the HIV+ individual (who knew his or her status) aggressively refused to use a condom saying, "We don't need to use a condom baby, I'm clean" and then infected their partner.
posted by Asparagus at 3:00 PM on December 6, 2013 [1 favorite]

Sex is a way to gain social privilege.

You know, at some point not too long ago in history, there was this thing where men would occasionally rape women into a marriage that was beneficial for them, because once it was known she had sex, no one else would want to marry her. They would do so to increase their social privilege in the world.

Are you arguing that's okay? Because you seem to be arguing that it's okay to rape someone or trick them into sex as long as if you do you gain something from it, which is literally one of the most awful positions on sex and consent I can possibly imagine.

Just because someone is poor doesn't make this type of behavior suddenly okay.
posted by corb at 3:56 PM on December 6, 2013 [1 favorite]

My views pretty much line up with kafziel's ^

So how do you two fit scenario 2 (abused HIV+ spouse) into your overall position? HIV disclosure should be mandatory except when disclosure has a reasonable risk of bodily harm? What level of harm is acceptable, and how when would it be acceptable to use as a defense?
posted by jaguar at 4:22 PM on December 6, 2013

So how do you two fit scenario 2 (abused HIV+ spouse) into your overall position? HIV disclosure should be mandatory except when disclosure has a reasonable risk of bodily harm? What level of harm is acceptable, and how when would it be acceptable to use as a defense?

Are you withholding the information predatorily, to deny someone of informed consent when they have sex with you, or are you doing it to not be killed in an abusive relationship? Circumstances and intent do matter.
posted by kafziel at 6:41 PM on December 6, 2013 [2 favorites]

I would say a majority of people would prefer not to have sex with someone who discloses that they are HIV+

I suspect the same is true for syphlis, chlamydia, hepatitus, and everything else. I expect that a full-disclosure society would make informed, safe, and consensual sex decisions. I'll bet practically all those decisions will end in having sex, albeit safer sex.
posted by five fresh fish at 7:20 PM on December 6, 2013 [1 favorite]

Are you withholding the information predatorily, to deny someone of informed consent when they have sex with you, or are you doing it to not be killed in an abusive relationship? Circumstances and intent do matter.

OK, so what if you're a trans woman, with HIV, and you worry that, given the extremely high rates of violence against trans people, disclosing to your new partner has a high probability of getting you killed?
posted by jaguar at 8:13 PM on December 6, 2013 [3 favorites]

It's amazing how hard you're looking for a given set of circumstances in which it's okay to expose somebody to HIV transmission risk without their knowledge or consent, and unless you're trying to pull some inane "well if it's EVER okay then it's ALWAYS okay!" argument, I'm deeply baffled as to why it's important to you to find that particular set of circumstances in which violating a person's right to choose whether or not to be exposed to HIV transmission risk is the lesser evil.
posted by Pope Guilty at 8:42 PM on December 6, 2013 [4 favorites]

Because it's moving beyond the level of declarative moral belief into actual policy.
posted by klangklangston at 8:53 PM on December 6, 2013 [4 favorites]

Because if it's better to let 10 guilty men go free than send one innocent one to jail, I'm interested in the thinking behind assuming everyone guilty. If people are agreeing that there are some circumstances in which exposing someone to HIV without their knowledge or consent that shouldn't be considered criminal, then I'm interested in figuring out how we'd construct laws that take those circumstances into account.

I also find conversations about those nuances entirely more interesting than "Lock everybody up! No discussion!"

The UN and the Presidential Council on HIV have issued guidelines about who they think should be held criminally liable for exposing others to HIV; I actually agree with those guidelines, but I'm interested to hear reasoned debate advocating other guidelines. So I'm trying to listen and figure out exactly what those people who are saying things I don't seem to agree with are actually saying, because I wonder if there's more common ground than we're realizing.
posted by jaguar at 8:55 PM on December 6, 2013 [1 favorite]

I mean, interestingly, most of the states that criminalize HIV transmission make it illegal for HIV+ people to spit on police officers or correctional officers, which two people in this thread who have said they support HIV-disclosure laws say they are against. So there's a lot of middle ground here.
posted by jaguar at 8:58 PM on December 6, 2013

I dunno, we have the self-defense defense against violent crime charges- surely "I feared that I would be killed if I disclosed my status" (though not "I feared that I wouldn't get laid if I disclosed my status") could be written into these laws.

I mean, interestingly, most of the states that criminalize HIV transmission make it illegal for HIV+ people to spit on police officers or correctional officers, which two people in this thread who have said they support HIV-disclosure laws say they are against. So there's a lot of middle ground here.

Being as spitting doesn't transmit HIV, I don't see why an HIV+ person spitting on somebody would be criminalised (except insofar as spitting might be criminalised irrespective of infection status). That's definitely not okay.
posted by Pope Guilty at 9:31 PM on December 6, 2013

Asparagus: "On the other end of the spectrum, I wonder what the anti-criminalization folks would think about a case where the HIV+ individual (who knew his or her status) aggressively refused to use a condom saying, 'We don't need to use a condom baby, I'm clean' and then infected their partner."

Nobody is against criminalization of that act - even if they might think they are. It is literally already a crime in every state in the US. Infecting another person with a disease intentionally is assault.

Pope Guilty: "It's amazing how hard you're looking for a given set of circumstances in which it's okay to expose somebody to HIV transmission risk without their knowledge or consent, and unless you're trying to pull some inane 'well if it's EVER okay then it's ALWAYS okay!' argument, I'm deeply baffled as to why it's important to you to find that particular set of circumstances in which violating a person's right to choose whether or not to be exposed to HIV transmission risk is the lesser evil."

It's amazing how hard people in this thread have managed to focus on a relatively very rare disease and ignored completely the upshot of what they're talking about. How long do you think we can pretend HPV doesn't exist and isn't killing people at a rate that's increasing rapidly?

"Being as spitting doesn't transmit HIV, I don't see why an HIV+ person spitting on somebody would be criminalised (except insofar as spitting might be criminalised irrespective of infection status)."

For the same reason that the laws we're talking about were passed: because people are deadly afraid of HIV+ people (and gay people by extension.) Now we know better; and you and I don't feel that way. You argue for these laws because you rightly see that knowingly exposing another person to a virus without their knowledge is deeply wrong.

But these laws we're talking about are like Jim Crow-era laws against black men murdering white people. We can all agree that murder is wrong, whether it's a black man or a white man or whatever. But can't we also agree that these particular laws are so rooted in a societal prejudice - a prejudice demonstrated by their ridiculous sentencing guidelines, which I don't think anyone here would defend - and that therefore it makes more sense to let them lapse and use alternate means to pursue the more egregious cases of knowing exposure to sexually transmitted infections?
posted by koeselitz at 9:39 PM on December 6, 2013 [4 favorites]

Being as spitting doesn't transmit HIV, I don't see why an HIV+ person spitting on somebody would be criminalised (except insofar as spitting might be criminalised irrespective of infection status). That's definitely not okay.

It's a felony punishable by up to 20 years in prison in multiple states.

So now I'm seeing pro-criminalization posters saying that when disclosure might result in serious harm to the person with HIV, lack of disclosure might not be a criminal act, and when a person with HIV is engaging in behavior that doesn't transmit HIV, that behavior might not be a criminal act.

So what do we do with the laws, then? Again, where do legal lines get drawn?
posted by jaguar at 9:41 PM on December 6, 2013 [1 favorite]

A good example of what I'm talking about, from Washington state:

"Time really has passed for those with HIV to be stigmatized for their disease and we want to reflect that in our (laws)," Moeller said during a public hearing last month on the bill. "Under the law, the HIV virus should and will be treated as any other highly contagious disease when it comes to protecting sexual partners."
posted by koeselitz at 9:44 PM on December 6, 2013

How long do you think we can pretend HPV doesn't exist and isn't killing people at a rate that's increasing rapidly?

Not very long? I hope that's the answer because people should be informed before they consent to the risk of catching a cancer-causing virus.
posted by five fresh fish at 12:36 AM on December 7, 2013 [1 favorite]

It's amazing how hard you're looking for a given set of circumstances in which it's okay to expose somebody to HIV transmission risk without their knowledge or consent, and unless you're trying to pull some inane "well if it's EVER okay then it's ALWAYS okay!" argument, I'm deeply baffled as to why it's important to you to find that particular set of circumstances in which violating a person's right to choose whether or not to be exposed to HIV transmission risk is the lesser evil.

It really doesn't seem complicated. Do you have the ability to decline sex? If you do, then the onus is upon you to either decline or disclose. If you do not have the ability to decline sex, then you are being raped, and this is an entirely different conversation.
posted by kafziel at 12:41 AM on December 7, 2013 [5 favorites]

But these laws we're talking about are like Jim Crow-era laws against black men murdering white people. We can all agree that murder is wrong, whether it's a black man or a white man or whatever. But can't we also agree that these particular laws are so rooted in a societal prejudice - a prejudice demonstrated by their ridiculous sentencing guidelines, which I don't think anyone here would defend - and that therefore it makes more sense to let them lapse and use alternate means to pursue the more egregious cases of knowing exposure to sexually transmitted infections?

Well, that really depends on the willingness of people to establish rape by deception as a category of sexual assault.
posted by kafziel at 12:48 AM on December 7, 2013 [1 favorite]

So now I'm seeing pro-criminalization posters saying that when disclosure might result in serious harm to the person with HIV, lack of disclosure might not be a criminal act, and when a person with HIV is engaging in behavior that doesn't transmit HIV, that behavior might not be a criminal act.

I think you're ignoring the fact that a goodly portion of those of us who are "pro-criminalization" in the thread are doing so because we see it as a sexual assault problem rather than a public health problem, and the reason we're not okay with letting it go and letting other laws fix the problem we care about is because currently, except for a few Scandinavian countries, they don't. Even in this thread, the idea of people not being able to lie to sexual partners has been met with derision. (Also, the serious-harm issue really boils down to, again, if you don't have the right to say "No, I don't want to have sex" without being beaten or killed, you are being raped. If you do have the right to say "No, I don't want to have sex", then do that if you're afraid someone would hurt you if you told them you had HIV.)

It doesn't matter whether someone is doing something that has an almost-nil chance of transmitting HIV, because the point is that people have the right to make their own sexual risk decisions themselves and not have them made for them.

How long do you think we can pretend HPV doesn't exist and isn't killing people at a rate that's increasing rapidly?

These things also would apply to HPV. I am horrified when I see people figuring that they don't have to disclose HPV, because "everyone has it", and tell people that they're "Clean". Absolutely horrified. I would support criminalization of knowingly lying to someone about HPV status as well. Most people don't ask about it as much, or share the horror, but I think a lot of it is the same BS "oh, well, if they told people they might not want to have sex with them, and it's irrelevant, because most people have it anyway." In fact, I've even seen that sort of thing here, as answers on the green. Not recognizing, of course, that maybe it wouldn't be quite so common if people screened for it and didn't catch shit for screening against it, but did catch shit for lying about it.
posted by corb at 6:16 AM on December 7, 2013

It really doesn't seem complicated. Do you have the ability to decline sex? If you do, then the onus is upon you to either decline or disclose. If you do not have the ability to decline sex, then you are being raped, and this is an entirely different conversation.

How do you prove the rape?

No, I'm serious. I've worked in rape prevention and treatment, and still counsel survivors. Most of them don't report, the conviction rate for rape is somewhere around 2%.

Do we try the rape survivor, questioning her about her rape and HIV status, and hope that she can convince the jury she's telling the truth? Given both the low conviction rate for rape and the (very evident in this thread) stereotype of people with HIV being sexual predators, are you convinced this is going to result in justice for many people? Especially in situations where the sexual coercion is more subtle than even a "date rape," where spouses may have been having more-or-less consensual intercourse?
posted by jaguar at 9:22 AM on December 7, 2013 [1 favorite]

("Date rape" in quotes because I hate the term and think it's just plain ol' rape, not because I don't believe the situation happens. Frequently.)
posted by jaguar at 9:23 AM on December 7, 2013 [1 favorite]

To my ear, this sounds like the arguments made by drunk drivers. They 'know' they're safe, so it's horribly unjust that their car is impounded when they get caught blowing over the limit. How do we know they can't drive safely at 0.0X? They haven't killed anyone, no one got hurt! It's no fair!!

Oh, wait, what if you've been drinking and your buddy gets hurt and you have to exceptional circumstance! special butterflies! unicorns! see that's why drunk driving laws are bad!
posted by five fresh fish at 9:34 AM on December 7, 2013 [3 favorites]

Despite the stereotype of the aggressive predator with HIV (which neatly maps onto the stereotype of the sexually predatory gay man), people with HIV are, in many many ways, socially disadvantaged. Often gay, or black, or sex workers, or drug-users, or women. The raw data used for the linked article shows that when the defendant's race was known, 263 were black and only 216 white (there's a huge number unidentified, so there's obviously room for that skew to resolve itself, but given US incarceration rates by race, I doubt that it would).

Even if you're talking about a straight white wealthy man, the simple fact of having HIV puts him in a disadvantaged class.

People in disadvantaged classes are especially vulnerable to coercion, and tend to be especially vulnerable to both prosecution and the threat of prosecution. Widespread discrimination against people with HIV exists, and adds to the difficulty of disclosure.

It's not "making excuses" to acknowledge reality, and to ask what the actual main desired outcome is. More people in prison? Or fewer people with HIV? If putting more people in prison results in more people with HIV (which, given prison rape statistics alone, it probably does), then how does or should that change our approach to criminalization?

Because it's absolutely not a 25-year-sentence-and-being-a-registered-sex-offender-for-life vs. nothing issue. Fines and/or short sentences are a possibility; not trying these cases as sex crimes is another; factoring in the actual medical/scientific data about what risks actually occurred and punishing high-risk behavior differently than low-risk behavior is another. And if the main goal is to reduce HIV transmission, then making sure that the law is incentivizing safe behaviors and punishing high-risk behaviors, rather than the other way around, is important.
posted by jaguar at 10:22 AM on December 7, 2013 [4 favorites]

people with HIV are, in many many ways, socially disadvantaged.

Sorry to be cold, but so what? As I said above, people with alcoholism are socially disadvantaged as well, but we do and should arrest them when they knowingly put others in harm's way.

Because it's absolutely not a 25-year-sentence-and-being-a-registered-sex-offender-for-life vs. nothing issue. Fines and/or short sentences are a possibility

I certainly see it that way, and as far as I can tell so do the other "pro-criminalization" posters on this thread. None of us are in favor of 25-year prison sentences, except perhaps in an extreme case like that guy Ferguson in the article you linked to above from Washington state.

But from what I can tell, there are a couple of "anti-criminalization" posters on this thread (not you, apparently) who do not see fines or short sentences as a possibility, who think that none of this should be against the law at all, and that is what we are arguing against.
posted by Asparagus at 12:04 PM on December 7, 2013 [2 favorites]

I find it disconcerting that there's a strong theme of "my right to sex supercedes your right to autonomy" in this thread. It is rape culture defense. Utterly disgusting.
posted by five fresh fish at 12:48 PM on December 7, 2013 [3 favorites]

jaguar: "people with HIV are, in many many ways, socially disadvantaged."

Asparagus: "Sorry to be cold, but so what? As I said above, people with alcoholism are socially disadvantaged as well, but we do and should arrest them when they knowingly put others in harm's way."

HIV is a particular sexually-transmitted disease that is code for "gay person" in a lot of places. You're basically advocating hyper-specific laws that ban, say, black-on-white rape, but leave white-on-black rape legal assuming that it either won't happen or isn't a big deal. If you want these laws to be just, you need to repeal them and start over with material that isn't so prejudicial and frankly bigoted.

corb: "Even in this thread, the idea of people not being able to lie to sexual partners has been met with derision."

The idea that people should not be able to lie about anything to their sexual partners was met with derision. That was what you argued - that people have different standards of consent, and therefore any lie whatsoever to a sexual partner automatically renders any sex into assault. I disagreed incredulously, because that legitimately creates a massive number of cases of rape where they don't belong.

Saying "I don't have HIV" when you have HIV is sexual assault. Saying "sure, honey, I took the trash out" when you didn't before sleeping with your husband does not make that sexual assault; I'm sorry, but it doesn't. It makes no sense to outlaw all lying to all actual or potential sexual partners. We have to have some way for the law to tell the difference between these cases.
posted by koeselitz at 4:22 PM on December 7, 2013 [4 favorites]

five fresh fish: "I find it disconcerting that there's a strong theme of 'my right to sex supercedes your right to autonomy' in this thread. It is rape culture defense. Utterly disgusting."

I haven't been able to tell if you've been serious through most of this thread - I had no idea if you really meant that people with colds who go to work should be imprisoned, for example; that seemed like self-parody - but now you've completely lost me. Who has said anything like this in this thread? Who has argued for any kind of right to have sex with non consenting partners?
posted by koeselitz at 4:26 PM on December 7, 2013 [2 favorites]

I've been hyperbolic in this thread. For instance, those assholes who come into work with obvious flu shouldn't be hanged, but there should be consequences such that they decide differently next time.

Flu outbreaks cost our economy some ten billion just in hospitalization, another sixteen billion in lost earnings, and another sixty billion in in associated costs.

Further, we are essentially guaranteed to suffer a pandemic flu. Costs for that are going to run in the trillions and a staggering loss of lives.

And all because people with flu act like assholes, going out in public without a mask or, preferably, staying home.

So, yes, I really am serious that we need to smarten up and force social change through the use of law.
posted by five fresh fish at 6:37 PM on December 7, 2013

Oh, and as for your last question, we've had people saying that it's all right to not disclose one's disease status. Which is to say that it is all right to prevent one's partner from making a fully-informed, consensual choice. At the very core of it, that is form of rape: non-consensual.
posted by five fresh fish at 6:49 PM on December 7, 2013 [1 favorite]

"we've had people saying that it's all right to not disclose one's disease status"

Nobody has said that here. At all.
posted by koeselitz at 9:27 PM on December 7, 2013 [1 favorite]

Flu outbreaks cost our economy some ten billion just in hospitalization, another sixteen billion in lost earnings, and another sixty billion in in associated costs.

Not showing up for work also costs disenfranchised people their jobs, most of the time. If we had better labor laws that protected the rights of workers, maybe people wouldn't feel obligated to come into work sick. But instead of setting up a system that protects sick people, we punish workers by firing them, or threatening jail time for risking making others sick.

If we do this shit to people with the flu, I can't possibly imagine why someone with HIV would keep stumm. It defies the imagination, right? BUT WE GOTS TO THROW THOSE PREVERTS IN PRISON GOTTA TEACH UM A LESSON.
posted by Blazecock Pileon at 10:00 PM on December 7, 2013 [5 favorites]

If we had better labor laws that protected the rights of workers, maybe people wouldn't feel obligated to come into work sick

Indeed. If full information were the expectation and clear consent the norm, a great many changes would occur. I think they'd virtually all be changes for the better.
posted by five fresh fish at 12:52 AM on December 8, 2013 [2 favorites]

Despite the stereotype of the aggressive predator with HIV (which neatly maps onto the stereotype of the sexually predatory gay man), people with HIV are, in many many ways, socially disadvantaged. Often gay, or black, or sex workers, or drug-users, or women.

You say this as though socially disadvantaged people, by virtue of their being socially disadvantged, were less likely to rape. Sadly, this is not the case - it's only that their targets tend to be other socially disadvantaged people.

Saying "I don't have HIV" when you have HIV is sexual assault. Saying "sure, honey, I took the trash out" when you didn't before sleeping with your husband does not make that sexual assault;

To clarify, my point was not that any lie renders something sexual assault - my point was that a lie about something you have specifically been asked about, and have reason to believe the person would not sleep with you if they knew the truth, is sexual assault. So yes. For example, in lies about jobs, if you are not telling your wife you are an informant infiltrating a specific group, but you're pretty sure she wouldn't care anyway, no one's saying you're assaulting her. If, however, you're an informant infiltrating the group of which your wife is a part, and you're using your relationship with her as cover, and you have reason to believe no fucking way would she sleep with you if she knew the truth, you are committing sexual assault. (I only wish I was making that last example up, sadly)
posted by corb at 3:58 AM on December 8, 2013 [2 favorites]

"we've had people saying that it's all right to not disclose one's disease status"

Nobody has said that here. At all.


I have carefully read the thread, and you're right. No one has stated it so bluntly.

Rather, we have endless justifications for why non-disclosure shouldn't be treated as a criminal matter, why non-informed and ergo non-consensual sex shouldn't be heavily punished, and why it's okay to lie to potential sex partners about various trivial and not-so-trivial things.

Consent and autonomy are at the core of this, IMO, and I am an absolutist: ain't nobodies business what you do, so long as those involved are informed and consenting. Cross that line and it becomes a serious legal issue.

I think we need to be more serious about making sure all sex is fully-informed and plainly consensual. In this thread there has been a lot of effort to paint non-disclosure as something less than rape, as something that shouldn't be criminalized. I think that is an abhorrent attitude.

IMO the right to be fully informed needs to be greater than the right to hide things.
posted by five fresh fish at 9:49 AM on December 8, 2013 [3 favorites]

I think many of us are separating out legal and ethical issues. Ethically, yes, of course, partners should almost always disclose; my exceptions would be for seriously coerced sex (rape, marital abuse, etc.).

Legally, I don't agree that ethical violations should always be punished criminally.
posted by jaguar at 10:05 AM on December 8, 2013

And that, to me, sounds a lot like you're saying the victim — the one who got screwed by less than full disclosure and consent — should not have the full backing of our government and judicial system when seeking redress.
posted by five fresh fish at 11:32 AM on December 8, 2013 [1 favorite]

I'm not sure what you mean by "full backing," but no, I don't think the full weight of the legal system should always be available to victims of unethical behavior. I think cheating on one's partner, for example, is reprehensible; I'm glad it's no longer illegal because I don't think it's any of the state's business.
posted by jaguar at 12:22 PM on December 8, 2013 [1 favorite]

I think many of us are separating out legal and ethical issues. Ethically, yes, of course, partners should almost always disclose; my exceptions would be for seriously coerced sex (rape, marital abuse, etc.).

Legally, I don't agree that ethical violations should always be punished criminally.

Unless you're saying that tricking someone into giving you sex without informed consent is no more than an "ethical violation" - something as legally trivial as infidelity - I really don't understand what the point of this distinction is.
posted by kafziel at 3:56 PM on December 8, 2013 [2 favorites]

Unless you're saying that tricking someone into giving you sex without informed consent is no more than an "ethical violation" - something as legally trivial as infidelity - I really don't understand what the point of this distinction is.

There are no standard legal guidelines for "informed consent" to sex; I haven't even heard the phrase used in regards to sex before this thread. Acting as if this is some sort of settled legal matter is weird to me, especially since many states don't have the HIV-disclosure laws we're talking about.
posted by jaguar at 4:38 PM on December 8, 2013 [1 favorite]

"informed consent" to sex; I haven't even heard the phrase used in regards to sex before this thread.

Then maybe you're not as well-informed and your opinions aren't as well-considered as you'd like them to be.
posted by Pope Guilty at 4:39 PM on December 8, 2013 [2 favorites]

Oh, whatever. Seriously, people, I'm trying to be as patient as possible, and as conscientious as possible in researching other groups' recommendations and studies and data, and when I try to ask direct questions of you as to how you'd make hard decisions about public policy/law for these issues, you're falling back into generalities and accusing me of being a rape apologist.

Congrats, you've won, I give up.
posted by jaguar at 5:02 PM on December 8, 2013 [1 favorite]

There are no standard legal guidelines for "informed consent" to sex; I haven't even heard the phrase used in regards to sex before this thread. Acting as if this is some sort of settled legal matter is weird to me, especially since many states don't have the HIV-disclosure laws we're talking about.

Concepts and degrees of consent under the law are very, very well-tread ground.
posted by kafziel at 7:17 PM on December 8, 2013 [1 favorite]

"Concepts and degrees of consent under the law are very, very well-tread ground."

Oh man remember that time we decided to read the links we thought supported our positions? "Within the literature concerning sexuality and consent, there is no consensus on a strict definition of the term consent, as well as how it should be communicated. [5] "

"Then maybe you're not as well-informed and your opinions aren't as well-considered as you'd like them to be."

Oh, come the fuck on. You've spent the thread in high dudgeon without actually addressing any of the policy questions that come with actually making it real. Jaguar's been the only person in here who consistently has supported their position with real evidence; they've been up against people who want to just declare morals by fiat and feel that expressing them with force is the same thing as expressing them with suasion.

There's no evidence that these laws have a positive effect; there is evidence that they have a negative effect. That's why pretty much everyone in this thread with a passing knowledge of actual AIDS policy or social work has been shouted down by a passel of cranks and idiots that have no idea how these things they want would function, and don't care at all about the real world.

So, congrats on shouting down another person until they quit the thread. Way to make MetaFilter worse because you're not actually looking to have a conversation so much as pick some simple Manichean principles to be a dick about.
posted by klangklangston at 8:48 PM on December 8, 2013 [4 favorites]

I understand you're mad- you feel that you've got the better argument and you're angry that people aren't agreeing with you, and jaguar flouncing gives you a great excuse to play the injured party.

But you're not entitled to win an argument, your perception of your argument is not necessarily correct, and especially when you're trying to argue that rape is sometimes okay, you maybe need to accept that there's going to be a lot of people who are going to disagree with you.
posted by Pope Guilty at 10:46 PM on December 8, 2013 [2 favorites]

Pope Guilty: "...when you're trying to argue that rape is sometimes okay...

Good goddamn, how many times are people going to make this silly, baseless accusation?
posted by koeselitz at 11:50 PM on December 8, 2013 [2 favorites]

"But you're not entitled to win an argument, your perception of your argument is not necessarily correct, and especially when you're trying to argue that rape is sometimes okay, you maybe need to accept that there's going to be a lot of people who are going to disagree with you."

What?

I'm trying to argue that rape is sometimes OK? The fuck are you even talking about?

Are you just trying to win the argument by setting up, like, the most ridiculous straw man possible? You read that entire UN report, and your take-away was that they were arguing that rape is sometimes OK? Did you ask all the adults at the library to help you with it?

There are two points: Not everything that is wrong is criminalized, and there are very real consequences of criminalizing things that aren't necessarily the outcomes you want, i.e. more harm than good.

Where's your evidence that these laws have a positive effect? The biggest study I've seen, linked here in this very thread, shows that these laws do not have a measurable positive effect on things like AIDS transmission rates or even population health. Which is an argument that they're ineffective as a policy instrument. There is also evidence that they have a net negative effect on public health.

Or :

Countries must not enact laws that explicitly criminalise HIV transmission, HIV
exposure or failure to disclose HIV status. Where such laws exist, they are
counterproductive and must be repealed. The provisions of model codes that have been
advanced to support the enactment of such laws should be withdrawn and amended to
conform to these recommendations.

…

A growing body of evidence suggests that the criminalisation of HIV non-disclosure,
potential exposure and non-intentional transmission is doing more harm than good in
terms of its impact on public health and human rights.

…

Although there may be a limited role for criminal law in rare cases in which people
transmit HIV with malicious intent, we prefer to see people living with HIV supported
and empowered from the moment of diagnosis, so that even these rare cases may be
prevented. This requires a non-punitive, non-criminal HIV prevention approach centred
within communities, where expertise about, and understanding of, HIV issues is best
found.

So, again, come the fuck on. You've got nothing but STERN MORAL DECLARATIONS to back your side, and you've fallen to the embarrassing point of accusing other members of "argu[ing] that rape is sometimes okay." You need to stop while you only look like kind of a clueless asshole.
posted by klangklangston at 11:54 PM on December 8, 2013 [4 favorites]

To maybe focus a little: the difficult question we've been wrestling with throughout this long thread is - what constitutes informed consent? Often we've just danced around it, but in general that's what we're trying to work toward. As far as I can tell, nobody here has argued that informed consent isn't a quality of all consensual sexual relations. People have only argued about where the lines around informed consent are drawn.

corb gave what I think is a pretty good answer to this question in response to me above; she said that informed consent means not lying about anything which you know to be a deal breaker for your partner. I am still not entirely sure I agree wholly with this; it's a standard I choose to follow myself, but I'm not sure how well it works society-wide, unless we get better at informing each other about our personal deal breakers. Another tack we could take is a slightly more conservative one: informed consent definitely includes informing a partner about any and all sexually-transmitted diseases to which they might be exposed. This is one that will take some education, since a lot of people (not in this thread, but elsewhere) are in the habit of saying that informing your partner about a previous HPV infection isn't necessary.

In any case, I feel like a review of current laws about these things should demonstrate that they're egregiously bad and akin to Jim Crow laws in their implementation. Most of them arose in the heady 80s as a direct result of paranoia about evil gay people coming and killing us all with their gay plague. As such, they're not laws about informed consent directly; they're laws aimed strictly at HIV positive people, ignoring the really crucial issues of informed consent we've discussed here.

What needs to happen at this point, I think, is that these laws really need to be re formulated somehow to make them aim more steadily and squarely at informed consent. I'm not sure if broad informed consent laws are feasible or even a good idea in the long run. But I think a narrower informed consent law that lays the charge of assault on those who don't disclose an STD-infected status is doable and desirable.

Again, through, that is pretty much not what the laws we're talking about are. So we've got a ways to go.
posted by koeselitz at 12:09 AM on December 9, 2013 [1 favorite]

As such, they're not laws about informed consent directly; they're laws aimed strictly at HIV positive people, ignoring the really crucial issues of informed consent we've discussed here.

You're absolutely, positively correct - but from here, it feels like a baby step towards a law about informed consent is better than a baby step away from it.

You note the Jim Crow example. I suppose a possible good comparison in that vein might be, what if there were no laws against white men raping women, but only laws against black men raping women? The laws would be monstrously unfair, in that they would let white men off the hook while black men were jailed, but at the same time, rape is still a bad crime and well deserving of punishment. Thus, someone saying "This is unjust, let's let all rapists go free" would be (I feel rightly) viewed with more suspicion than someone saying, "This is unjust, let's jail all rapists."

I have, I suppose, no faith whatsoever that if these baby steps towards informed consent laws were removed, that we would have a new insurgence of informed consent law. The amount of people I meet every day with no knowledge of it is astonishing.

And the only way that some people can even come close to understanding about consent is in things like severe STDs. "I lie every day...whoa, someone lied about HIV? Yeah, I guess that is pretty serious. Whoa, we should really have a law about that!" And that's how these laws came to pass. Someone said, "This is serious after all."

So yeah, I'd hope we could move from there to all STDs, and then move from there to dealbreaker lies. And I know it's not fair in a sense - HIV is not the only real consent issue. But it's the only one we can get on the table right now, so I guess I'd call it a win, because at least it's something.
posted by corb at 1:13 PM on December 9, 2013

They are debating Rape-by-Deception and such over at Yale Law Journal, the article that kicked it off:

'The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy' - Yale Law Journal

But if you go to YaleLawJournal.org they've got plenty of rebuttals.
posted by BrotherCaine at 1:18 PM on December 9, 2013 [5 favorites]

The author, Sergio Hernandez, sent me an email to let me know that he appreciated the detailed discussion going on here. So thanks, everybody. :)
posted by klangklangston at 2:54 PM on December 9, 2013 [2 favorites]

Ha, yes. Hi all—I authored the ProPublica/BuzzFeed story.

Just wanted to thank you all for taking the time to read the story. It's great to see it's prompted such an informed and lively conversation.
posted by cerealcommas at 3:09 PM on December 9, 2013 [5 favorites]