So here’s the PDF of a pamphlet put out by International Planned Parenthood. They say that even though you’re HIV-positive, you have the right to a fulfilling sex life. I suppose I agree with that statement generally… but not the way they mean it, because they say:
I find that message to be extraordinarily disturbing.
Or am I just being a foolish conservative, unwise to the new, hip ways of the modern world?
Do you think it’s constitutionally permissible to criminally penalize non-disclosure?
I think the constitutional issue would be extremely thorny - privacy rights (and arguably, speech rights) versus a strong public interest would create a hell of a mess. But Planned Parenthood seems to be making a different argument here - that it is moral and acceptable to decline to mention your HIV-positive status to your partner.
I normally agree with Planned Parenthood, and think they do tremendously good and important work - but on this one point, if this is indeed their position, I believe that they are wrong. Sure, it’s possible to have safe sex whilst HIV-positive, and I’d not begrudge anyone the chance to take a stab at it. But I’m a huge believer in informed consent - if a woman declined to mention that she had HIV before we did the deed, I’d be perturbed. (I’d say “vexed”, but I think Skald owns that word for the foreseeable future.) Sure, my risk of exposure, especially with a condom, would be quite low - but damnit, I want to be the one who decides whether I take that risk.
Sure.
I don’t see why not in this situation. I don’t think one could constitutionally require HIV positive people to wear a Scarlet H, for example, but the privacy concerns are minimized when the person takes a voluntary action, such as having sex.
An interesting legal question would be whether a person could be prosecuted under such a law for not telling his or her rapist that he or she was HIV positive.
Same here. It points out that the onus of responsibility is on both parties, not just one, which is true and well worth mentioning. But when a potential problem is known only to one party, I don’t see how the other person can take any responsiblity for something they don’t know. Other than to ask, obviously, but future mutual co-operation on safe sex requires initially knowing all that’s going on.
One partner having HIV doesn’t mean that only they then have to be the one to be careful, to research all this stuff, to plan out, whilst the other does nothing because it’s not “their” problem. But it does, to my mind, mean they have to come out and actually tell their potential partner about it, even if any risk is very low.
I’m not sure, however, that i’m convinced it should be made a criminal offense. So far as I can tell, the PDF does say that disclosure is the best way to go about things, absent situations where that might mean violence or harm of some kind, and absent risky situations. I think it’s reasonable to say that they are supportive of disclosure; they’re just against making nondisclosure illegal.
Really? I mean, I’m not sure that it isn’t, and I freely admit that as a brand-new lawyer, my instincts here may not be so great - but I don’t see a way to frame this as a slam-dunk argument that it’s constitutional.
How do you work this? “The State has a compelling interest in ensuring that people are not unwittingly exposed to dangerous disease through unprotected sex, which trumps the individual’s right to privacy?” The obvious rejoinder would be that the State’s interest in safe(er) unprotected sex surely can’t be all that great, especially when protection is widely available.
I suppose you could then say, “The risks involved in sex even with condom use are such that the State’s compelling interest trumps the privacy interest at issue,” but then you get into some really tricky balancing issues. The risks involved in protected sex are much lower than those involved in unprotected sex. Moreover, where do we draw the line? HPV can cause fatal cancers - shall we require sexual partners to disclose their HPV status?
I think it’s possible a court would agree with you, Bricker - but could you talk a bit more about how you see this playing out? Because I just see a giant mess.
Also, aside from the constitutional issue, there’s a compelling policy argument that criminalizing non-disclosure would be a profoundly bad idea: you can’t disclose information you don’t have. Criminal laws of this sort could discourage testing. Which could cost lives.
All that being said, I still believe that non-disclosure is immoral, unethical, and sleazy as hell. But criminalizing it, absent deliberate attempts to exposure your partner, is not the way to go.
So, without the law specifically stating it to be required, wouldn’t that be chargeable anyway? Knowingly engaging in an activity that could infect someone with an incurable, fatal disease without even informing them of the need to be tested? It sounds like Reckless Endangerment at the very least.
The fact is that getting at risk people to be tested is already hard enough without creating a mechanism to produce new unaware carriers. If you know,and don’t tell, it means you think the partner in question is likely to have a negative response. Is getting laid more important than risking their life? They should drop you like a bad habit, even if it turns out you were wrong and don’t have HIV.
Tris
Bricker - you’ve just cherry-picked a side-bar quote.
i’m going to pick a representative one from the main text. On the same page
Or:
This pamphlet is quite obviously and clearly not advocating what you feel obliged to, for whatever reason that might be, claim it is.
Triskadecamus, it’s charged as assault from time to time, yes.
People v. Russell, 630 N.E.2d 794 (Ill. 1994)
State v. Mahan, 971 S.W.2d 307 (Mo. 1998)
State v. Hutchinson, 734 N.E.2d 457 (Ohio Ct. App. 1999)
State v. Gamberella, 633 So.2d 595 (La. Ct. App. 1993)
State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992)
People v. Jensen, 586 N.W.2d 748 (Mich. Ct. App. 1998)
Here is a list of related state statutes. A brief run at finding successful challenges to any of them came up empty; the unsuccessful challenge list is partially displayed above.
I’ll admit I haven’t researched this in great depth, but there doesn’t seem to be much ambiguity about the constitutionality of “must inform” statutes. Many of them make it a crime, period, to have intimate contact with anyone when you’re HIV positive, and then an affirmative defense that you informed your partner – this shifts the burden of proof from the state, to prove that you didn’t inform, to you to prove that you did. Again, this scheme has been upheld.
Not true. They obviously encourage voluntary disclosure; I don’t dispute that. But they equally obviously claim that MANDATORY disclosure, enforced by criminal sanctions, is violative of the privacy rights of the individual. It is that claim I object to.
See my thread title? Where it says “Mandatory?”
See the PDF? Nowhere does that word appear.
As for your question, are you arguing wisdom (for once) instead of law? Because if it’s the latter, you do have to acknowledge that there are competing rights involved, including the one to privacy. We do know your disdain for the concept that there is such a thing, but there is one nonetheless.
But if you’re just arguing that a person with a disease really should disclose that fact before knowingly exposing another person to it, then good luck finding anyone to disagree. Not even PP does, despite the inference in the thread title you chose. 
So do I understand this correctly? If I were HIV+ and, say, broke up with a partner with bad feelings all around, could this ex-partner have me arrested for having sex with him, and by denying I told him before having sex, provide the state a prima facie case for putting me in jail? And it would be up to me to somehow prove that I had told him, in order to stay out of jail?
I can’t speak to the constitutionality, not being a lawyer or anything of that kind, but if this is what the law supports, it does not seem to me to represent any kind of justice, due to the high potential for abuse in the wrong hands and to the lack of protection for the rights of the accused.
Roddy
So, I take it you are against rape laws as well for just the same reasons?
Well, let’s look at another crime in comparison. If you broke up with a partner with bad feelings all around, that ex-partner could have you arrested for having hit him. All he needs to do is swear out a warrant in front of a magistrate that you hit him, and this provides the state a prima facie case for putting you in jail.
And (assuming he testifies consistently with that story at your trial, and the jury believes him) it would be up to you to somehow prove that you didn’t hit him in order to stay out of jail.
In other words, that’s how every single freakin’ crime in the book works: an accusation of a crime under oath in front of a magistrate generally creates probable cause for arrest. At trial, the jury, or the judge at a bench trial, is entitled to believe even a single witness if that witness’ testimony establishes each and every element of the offense.
So it’s not clear to me what you’re upset about.
Thanks, Bricker! Interesting set of cites to read.
Is this a joke? Can’t you shoot rapists in the act? (Alas, not after…)
It is interesting, and with 50 different versions of the law at hand, i don’t think I can make a completely safe statement here, but…
I think ‘no.’
I think that a rape would make the conduct fail in its implied scienter element. Let’s take Iowa:
You must intend to engage in intimate contact with another person. As the victim of a rape, obviously, you don’t.
But you can’t shoot them because you want them to die; you can only shoot them to seek to prevent them raping you. Withholding information like this cannot prevent a person from raping you, therefore it isn’t self defense.
So no, it isn’t a joke. I think Bricker has it right on scienter though. God help us if there is a negligence scienter standard rather than intentional out there, and we find some judge to claim that a woman met the negligence standard by her dress and actions in a bar…