Criminalization of HIV

[Guo Xiang]

There is "informed consent" if a person knows that there is a risk of contracting STD, HIV, and other disease when they engage in unprotected sex. I agree that there is no ethical excuse to not let your sexual partner know about your condition. But what is unethical does not make it criminal.

In any types of transaction, both parties should have have some duty to investigate. Why should the burden fall solely on the shoulder of the party that has HIV, and the other party can decide to keep his/her head in the sand. You could have asked, cased the place, or used a condom. The law should protect a person from harm, but I don't agree that it should protect one that willingly engages in reckless activity - unprotected sex.

As to discrimination, I think there is a difference between what is being discriminated against and who is doing the discrimination. As to the examples you cited the party doing the discrimination is a private company, the insurance carrier or the employer. But when you make a law that criminalize HIV, the government is doing the discrimination. For example, if I decide that I will never allow Asians on my property because I hate Asians - that is fine because that is my house, my property. But it is different when the government decides to make a law and restrict Asians from entering public parks.

In short, I find it reprehensible that there is a law, if there is one, that will criminalize a HIV-patient. Cause at the heart, you are discriminating against someone that is a victim of HIV for engaging in consensual sex.

Meaning each time people wants to have sex they must go for a checkup? Like, having sex 100 times in a month and going for 100 checkups in a month? Lovely. j/k

[Banh Mi]

There is "informed consent" if a person knows that there is a risk of contracting STD, HIV, and other disease when they engage in unprotected sex. I agree that there is no ethical excuse to not let your sexual partner know about your condition. But what is unethical does not make it criminal.

But the notion we are pushing is that it should be criminal.

In any types of transaction, both parties should have have some duty to investigate. Why should the burden fall solely on the shoulder of the party that has HIV, and the other party can decide to keep his/her head in the sand. You could have asked, cased the place, or used a condom. The law should protect a person from harm, but I don't agree that it should protect one that willingly engages in reckless activity - unprotected sex.

When something is a danger to others, it's the burden of the responsible party to inform others.
While risky sexual behaviour should not be encouraged, those who practice it only put themselves at risk. People who spread HIV, put other people at risk. The difference there is everything.
Your logic is would make it your fault if I invite you to dinner and poison your food. No, if I put you at risk. It's my responsibility to fully inform you of what contageous diseases I have.

As to discrimination, I think there is a difference between what is being discriminated against and who is doing the discrimination. As to the examples you cited the party doing the discrimination is a private company, the insurance carrier or the employer. But when you make a law that criminalize HIV, the government is doing the discrimination. For example, if I decide that I will never allow Asians on my property because I hate Asians - that is fine because that is my house, my property. But it is different when the government decides to make a law and restrict Asians from entering public parks.

In short, I find it reprehensible that there is a law, if there is one, that will criminalize a HIV-patient. Cause at the heart, you are discriminating against someone that is a victim of HIV for engaging in consensual sex.

We discriminate all the time. That is how the world works. We discriminate students based on test scores. We discriminate people on age. In Australia, the government practices outright racism, ask anyone who is not Torres Strait Islander. Discrimination exists because it's useful, it's not PC to discriminate, but it's how society functions.

[Ren Ying Ying]

There is "informed consent" if a person knows that there is a risk of contracting STD, HIV, and other disease when they engage in unprotected sex. I agree that there is no ethical excuse to not let your sexual partner know about your condition. But what is unethical does not make it criminal.

In any types of transaction, both parties should have have some duty to investigate. Why should the burden fall solely on the shoulder of the party that has HIV, and the other party can decide to keep his/her head in the sand. You could have asked, cased the place, or used a condom. The law should protect a person from harm, but I don't agree that it should protect one that willingly engages in reckless activity - unprotected sex.

As to discrimination, I think there is a difference between what is being discriminated against and who is doing the discrimination. As to the examples you cited the party doing the discrimination is a private company, the insurance carrier or the employer. But when you make a law that criminalize HIV, the government is doing the discrimination. For example, if I decide that I will never allow Asians on my property because I hate Asians - that is fine because that is my house, my property. But it is different when the government decides to make a law and restrict Asians from entering public parks.

In short, I find it reprehensible that there is a law, if there is one, that will criminalize a HIV-patient. Cause at the heart, you are discriminating against someone that is a victim of HIV for engaging in consensual sex.

Yes. It is "informed consent" if the other person KNOWS about the risks of contracting HIV. But if the other person DOESN'T know about the risks (which is the entire premise for this thead), then there is no "informed consent". You can say that any type of unprotected sex will carry risks of being infected with HIV, but a 3% risk is vastly different from a 100% risk. Put it this way, if there is non-disclosure of any information that will likely change the other party's decision of giving consent--then there is NO consent.

It doesn't matter whether the other party is engaging in "reckless activity" or not (and not all unprotected sex is considered as reckless activity). If you get into a gang fight and kill someone, you still get charged for manslaughter regardless of whether or not the other parties knows about the risks of dying (at least the HIV patient gets to let off if the other person knows about the HIV status)

It is the infected person's duty to inform because he/she is the one posing the other at risk. Knowingly infecting another person with a "deadly" virus is considered a malicious act regardless of whether or not it was the original intention. Not all "unethical" acts may be illegal...but this one sure has criminal intent. I don't see any other way around it.

"Discrimination" is a frowned upon word because it is associated with infringing upon people's right. In a perfect world, nobody's rights will ever get stepped upon. But, in a perfect world, HIV patients will always inform their partners (heck a perfect world, there may no HIV period). But, since we don't live in the perfect world, someone's rights are going to get hurt for the protection of another's. In this case, you are weighing the"HIV patient's right to privacy" vs. the "partner's right to live". Sorry HIV patient, the "right to live" wins the fight.

What is bad "discrimination" in this case is that other diseases such as HepB, HPV, etc are getting let off the hook.

[Suzaku]

But the notion we are pushing is that it should be criminal.

Good for you, but the notion I'm advocating is that it should not be criminal.

I think the partner is an *** if he/she does not tell their partner that they're infected with HIV and put others at risk. I think there is an absolute moral responsibility to inform, but just not a legal duty.

I don't really have an opinion if you want to sue the partner in civil court (with your own money), but I just don't agree that the government should make a criminal law that imposes a duty to inform on the HIV infected party. A mixture of sentiments that include (1) you should not make laws that discriminate a group of people that is infected with a disease; (2) the government should not be making laws that govern our bedrooms; and (3) some faith in the human race that we can self regulate and do the right thing. The answer is to educate not legislate.

When something is a danger to others, it's the burden of the responsible party to inform others.
While risky sexual behaviour should not be encouraged, those who practice it only put themselves at risk. People who spread HIV, put other people at risk. The difference there is everything.
Your logic is would make it your fault if I invite you to dinner and poison your food. No, if I put you at risk. It's my responsibility to fully inform you of what contageous diseases I have.

Generally, I agree with the premise that there is a duty to warn, if I created the danger. But there is the intimate nature of a sexual relationship, and my distaste for big brother peering into my bedroom that I think it is inapplicable in this scenario. Further, the analogy does not really fit, because the practice of safe sex, and a low viral load will negate most if not all the risks. And there is an easily available method to protect yourself, which you affirmatively choose to not use.

We discriminate all the time. That is how the world works. We discriminate students based on test scores. We discriminate people on age. In Australia, the government practices outright racism, ask anyone who is not Torres Strait Islander. Discrimination exists because it's useful, it's not PC to discriminate, but it's how society functions.

I don't agree that discrimination is useful and it is how society functions. But a different argument for a different day. Student test scores is not really discrimination because all students, hypothetically, have the same possibility of scoring the top score.

Well, what can I say about Australia, if you are not / are an Torres Strait Islander, how has discrimination helped you or Australian society to function?

[Suzaku]

Yes. It is "informed consent" if the other person KNOWS about the risks of contracting HIV. But if the other person DOESN'T know about the risks (which is the entire premise for this thead), then there is no "informed consent". You can say that any type of unprotected sex will carry risks of being infected with HIV, but a 3% risk is vastly different from a 100% risk. Put it this way, if there is non-disclosure of any information that will likely change the other party's decision of giving consent--then there is NO consent.

We don't see eye to eye in the level of information you need, and probably never will. I don't agree that you need 100% full disclosure to have consented to the act. The parties are adults, with adult mental faculties, and they can make adult decisions. We all made decisions and took actions that had unintended consequences, and we live with those consequences.

If you want to analogize to businesses, there is the sale transaction with 100% full disclosures and warranties, and the one that is sold "as is." I see that a sexual relationship is closer to a transaction that is "as is," whereas you feel that 100% disclosure is necessary. Neither of us will budge from our position, lets just drop it.

It doesn't matter whether the other party is engaging in "reckless activity" or not (and not all unprotected sex is considered as reckless activity). If you get into a gang fight and kill someone, you still get charged for manslaughter regardless of whether or not the other parties knows about the risks of dying (at least the HIV patient gets to let off if the other person knows about the HIV status)

I don't think you should legislate to put the burden solely on one party, when it takes two to tango - even when one party has more information. You get into a gang fight and kill someone you get charged with manslaughter, both parties on some level chose to get involve in a gang fight. You kill some innocent bystander minding their business - you get charged with murder.

Further, even if you get infected with HIV, there is no guarantee that you will die from AIDS. Is there still liability if that person gets run over by the bus right after they find out their diagnosis?

It is the infected person's duty to inform because he/she is the one posing the other at risk. Knowingly infecting another person with a "deadly" virus is considered a malicious act regardless of whether or not it was the original intention. Not all "unethical" acts may be illegal...but this one sure has criminal intent. I don't see any other way around it.

It is a malicious act when an HIV patient takes an infected syringe and stabs someone, intentionally or unintentionally. I think it is the uninfected person's duty to protect themselves, and engage in protected sex.

"Discrimination" is a frowned upon word because it is associated with infringing upon people's right. In a perfect world, nobody's rights will ever get stepped upon. But, in a perfect world, HIV patients will always inform their partners (heck a perfect world, there may no HIV period). But, since we don't live in the perfect world, someone's rights are going to get hurt for the protection of another's. In this case, you are weighing the"HIV patient's right to privacy" vs. the "partner's right to live". Sorry HIV patient, the "right to live" wins the fight.

I was not asserting that there is no discrimination in this world. But from a public policy standpoint you balance the public interest you want to protect vs. the costs, "infringement." I don't disagree that HIV or AIDS is a horrible disease and there is a compelling public interest to protect the people.

However, in protecting the public interest you should choose the less invasive and less discriminatory method available. Is it really that difficult and burdensome to use a condom?

There are taxes on cigarettes and laws, in some countries, that prohibit a smoker from smoking in public places. These laws clearly discriminate against people that smoke. They should have the right to smoke wherever they please, but what about the public interest of protecting people against second hand smoke? The public cannot choose to not breath; hence, we legislate to restrict people from smoking in public places.

In this case, the public can choose to engage in protected sex. This is a less discriminatory and just as effective method to protect the public interest.

I am not only balancing the HIV patient's right to privacy but also their rights to engage in sexual activity without government regulation. If the condom is ineffective in preventing the spread of AIDS, then there is a compelling public interest to legislate - but you have yet to convince me that the condom is ineffective.

What is bad "discrimination" in this case is that other diseases such as HepB, HPV, etc are getting let off the hook.

Where do you think we should stop?

Not to mention this is an administrative nightmare. Most people have multiple sexual partners and it could be years before they're diagnosed with the disease. And the virus, unfortunately, does not come with a nametag that identifies the source and the date of infection.

[Banh Mi]

Good for you, but the notion I'm advocating is that it should not be criminal.

I think the partner is an *** if he/she does not tell their partner that they're infected with HIV and put others at risk. I think there is an absolute moral responsibility to inform, but just not a legal duty.

I don't really have an opinion if you want to sue the partner in civil court (with your own money), but I just don't agree that the government should make a criminal law that imposes a duty to inform on the HIV infected party. A mixture of sentiments that include (1) you should not make laws that discriminate a group of people that is infected with a disease; (2) the government should not be making laws that govern our bedrooms; and (3) some faith in the human race that we can self regulate and do the right thing. The answer is to educate not legislate.

The purpose of such a law is to a non-treatable disease from spreading, why do we quarantine people?
There shouldn't be laws about the bedroom but there are laws against incest, pedeophilia, necrophilia etc. Government should not as you say be making laws about the bedroom, but they are. I think diseases is a reason for concern as well.

Generally, I agree with the premise that there is a duty to warn, if I created the danger. But there is the intimate nature of a sexual relationship, and my distaste for big brother peering into my bedroom that I think it is inapplicable in this scenario. Further, the analogy does not really fit, because the practice of safe sex, and a low viral load will negate most if not all the risks. And there is an easily available method to protect yourself, which you affirmatively choose to not use.

If you feel so much for the plight of those with HIV, maybe the onus should have been on them to practice safe sex but since they haven't, they should be made sure not to spread it to anyone else. What if you married someone who lied about having HIV. Your method to protect yourself isn't exactly reassure.

I don't agree that discrimination is useful and it is how society functions. But a different argument for a different day. Student test scores is not really discrimination because all students, hypothetically, have the same possibility of scoring the top score.

Well, what can I say about Australia, if you are not / are an Torres Strait Islander, how has discrimination helped you or Australian society to function?

And all people hypothetically have the same possibility of not being infected with HIV. But shit happens, damage control is necessary.

[Suzaku]

The purpose of such a law is to a non-treatable disease from spreading, why do we quarantine people?
There shouldn't be laws about the bedroom but there are laws against incest, pedeophilia, necrophilia etc. Government should not as you say be making laws about the bedroom, but they are. I think diseases is a reason for concern as well.

We do not quarantine people indefinitely, and we do not quarantine people with HIV or AIDS. It is crazy that you are comparing sex between two consenting adults to incest, pedophilia, and necrophilia. I don't see a compelling public health interest reason/concern when using protection is highly effective in preventing the spread of the disease.

If you feel so much for the plight of those with HIV, maybe the onus should have been on them to practice safe sex but since they haven't, they should be made sure not to spread it to anyone else. What if you married someone who lied about having HIV. Your method to protect yourself isn't exactly reassure.

So your argument is that we should punish the HIV carrier because he/she failed to engage in safe sex previously. So what about the current partner that is HIV negative and engage in unprotected sex. Shouldn't we punish them too.

If the parties engage in safe sex and the risk of exposure to the disease is about 1% - is there still a public health reason for criminalizing HIV because of lack of disclosure?


In the married couple scenario, how does a law for disclosure or criminalizing HIV benefit anyone? Yes, you can have your spouse in jail or pay a hefty fine to the government before you divorce them for infecting you with HIV. j/k

Yes, I feel for the plight of the people infected with HIV. Probably I will feel differently when one of my friends get infected by some dumb bloke. But that is for another time - hopefully never.

And all people hypothetically have the same possibility of not being infected with HIV. But shit happens, damage control is necessary.

Damage control can take many forms, you can hypothetically quarantine everyone with HIV/AIDS for life or shoot them, and eradicate the disease, or educate people about safe sex and the importance of full disclosure to your partner.

[Banh Mi]

We do not quarantine people indefinitely, and we do not quarantine people with HIV or AIDS. It is crazy that you are comparing sex between two consenting adults to incest, pedophilia, and necrophilia. I don't see a compelling public health interest reason/concern when using protection is highly effective in preventing the spread of the disease.

I'm not suggesting we quarantine people with AIDs, but it's the attitude we oughta treat it with, keep a close eye on them. A simple, hey I have AIDS mention before getting any sex isn't that bad. And I'm just providing examples where the law does interfere with what goes on in the bedroom.

So your argument is that we should punish the HIV carrier because he/she failed to engage in safe sex previously. So what about the current partner that is HIV negative and engage in unprotected sex. Shouldn't we punish them too.

You're saying they shouldn't be discriminated against because they have AIDs, but people who have nothing should be the ones watching their backs, if only they practice safe sex. I'm just saying why not shift the focus around, focus on the people who already have the disease from spreading.

If the parties engage in safe sex and the risk of exposure to the disease is about 1% - is there still a public health reason for criminalizing HIV because of lack of disclosure?

How is that different from why we don't let previous child offenders into occupations involving children? You're pretty much basing the whole thing on faith, in which case, it's easier to just don't do it.

In the married couple scenario, how does a law for disclosure or criminalizing HIV benefit anyone? Yes, you can have your spouse in jail or pay a hefty fine to the government before you divorce them for infecting you with HIV. j/k

Laws help deterence, and anyone who does that has malicious intent.

Damage control can take many forms, you can hypothetically quarantine everyone with HIV/AIDS for life or shoot them, and eradicate the disease, or educate people about safe sex and the importance of full disclosure to your partner.

It's still based on faith. There are cited cases where people who contracted AIDs become angry and take it out on people by trying to spread it. The law should be able to deal with that, and deter it.

[Ren Ying Ying]

We don't see eye to eye in the level of information you need, and probably never will. I don't agree that you need 100% full disclosure to have consented to the act. The parties are adults, with adult mental faculties, and they can make adult decisions. We all made decisions and took actions that had unintended consequences, and we live with those consequences.

If you want to analogize to businesses, there is the sale transaction with 100% full disclosures and warranties, and the one that is sold "as is." I see that a sexual relationship is closer to a transaction that is "as is," whereas you feel that 100% disclosure is necessary. Neither of us will budge from our position, lets just drop it.

I don't think you should legislate to put the burden solely on one party, when it takes two to tango - even when one party has more information. You get into a gang fight and kill someone you get charged with manslaughter, both parties on some level chose to get involve in a gang fight. You kill some innocent bystander minding their business - you get charged with murder.

Further, even if you get infected with HIV, there is no guarantee that you will die from AIDS. Is there still liability if that person gets run over by the bus right after they find out their diagnosis?

It is a malicious act when an HIV patient takes an infected syringe and stabs someone, intentionally or unintentionally. I think it is the uninfected person's duty to protect themselves, and engage in protected sex.

I was not asserting that there is no discrimination in this world. But from a public policy standpoint you balance the public interest you want to protect vs. the costs, "infringement." I don't disagree that HIV or AIDS is a horrible disease and there is a compelling public interest to protect the people.

However, in protecting the public interest you should choose the less invasive and less discriminatory method available. Is it really that difficult and burdensome to use a condom?

There are taxes on cigarettes and laws, in some countries, that prohibit a smoker from smoking in public places. These laws clearly discriminate against people that smoke. They should have the right to smoke wherever they please, but what about the public interest of protecting people against second hand smoke? The public cannot choose to not breath; hence, we legislate to restrict people from smoking in public places.

In this case, the public can choose to engage in protected sex. This is a less discriminatory and just as effective method to protect the public interest.

I am not only balancing the HIV patient's right to privacy but also their rights to engage in sexual activity without government regulation. If the condom is ineffective in preventing the spread of AIDS, then there is a compelling public interest to legislate - but you have yet to convince me that the condom is ineffective.

Where do you think we should stop?

Not to mention this is an administrative nightmare. Most people have multiple sexual partners and it could be years before they're diagnosed with the disease. And the virus, unfortunately, does not come with a nametag that identifies the source and the date of infection.

A business loss may hurt someone psychologically, but it will not directly affect a person's physical health. The two are different. You may directly cause a person's choice to suicide, but it's an entirely different matter if you actually took a knife and stabbed someone to death. When you are at risk of exposing someone to a health risk, 100% disclosure necessary. If you are a health professional and you obtain consent without telling them about ALL the risks, you will get your a$$ sued out.

The only way you can 100% protect yourself from HIV is abstinence and zero physical contact with body secretions of other individuals. Condoms do NOT offer 100% protection against any type of STDs. You can practice as much safe sex as you like, but it does not necessarily prevent you from gettin HIV from your partner. Low viral loads decrease the risk of transmitting HIV, but you cannot monitor the load 24/7, lab results are not always reliable, and it's still a higher risk than having no HIV at all. HIV doesn't guarantee a person progressing to AIDS or death, but it does put the person at a much higher risk. In short, the HIV patient is exposing his/her partner at a higher risk for infection with the virus and health problems regardless of the methal of sexual contact. So unless you are asking the public to completely abstain from sex, then there really isn't any sure way they can protect themselves from HIV. Getting run over by a bus after finding out their diagnosis has nothing to do with the argument because they would not have had a chance to have sex with anyone else yet.

HIV is a terrible virus which can cause AIDS, which I do think is a pretty horrible disease. Really, how deadly should a disease be before you label it as "horrible"? The average survival rate for patients who have progressed to AID is less than 2 years. Even for HIV, you pretty much have to be on HAART therapy for the rest of your life...

Still, the law is designed to protect people. As I've written previously, ideally, the law shouldn't be invasive of people's privacy. However, if that person poses a danger to another person (or even him/herself). This is why you can bust into someone's bedroom for hiding cocaine. Why you can bust into someone's bedroom for suspected murder. It is why you need to quarantine people with tuberculosis, SARS, etc. At the end of the day, the protection of the public's health & safety is usually more important. Sure, its not always a black or white situation, but this situation is pretty dark (or extremely light) on the scale. Just because we are unsure where to draw the line for gonorhea and clamydia, it doesn't mean HIV should be let off the hook. You are too hooked up on results (punishment when the disease has already been spread) as compared to the original intent, which is to prevent its speading. A person who exposes another at a dangerous health risk should inform the other person. If the person purposely exposes another to a health risk, is it not malicious intent? You don't have to kill another person to have malicious intent. Hell, you can be charged for attempted manslaughter for speeding.

As for administration, I agree it would be diffucult to enforce the law 100%. In most cases, the parter does not even bother bringing the matter up for legal attention. However, since we are only looking at HIV patients who know about their status, it is adminstratively possible to know when the HIV patients discovered their status because all HIV patients are reported to the CDC. The partner can provide the (range of) dates of intercourse. It isn't difficult to add one and one together. The tough part would be ensuring that the partner is indeed telling the truth (either about intercourse dates or being held information from) or that the HIV patient was in position to inform the partner (ie. a drunk one night stand). But of course, like all things, nothing is perfect. There are plenty of murderers who get away for whatever reason. That doesn't stop us from creating laws that punish murderers.