By Scott Schoettes, HIV Project Director for Lambda Legal
Ask Lambda Legal
Q:
I was online and reading about people getting prosecuted for having sex because they didn't tell their partner they had HIV. What are the realities behind HIV status disclosure and the law?
A: As Lambda Legal continues to work on repealing HIV criminalization laws, we frequently see comments on blogs and our social media posts about disclosure, and some people believe that people living with HIV should be required to disclose their status before having sex, and that the failure to do so should land them in jail.
Perhaps people who say "just disclose" do not realize the difficulties — and sometimes outright danger — involved in disclosure. We know from experience that disclosure does not necessarily prevent prosecution and conviction under these laws — it is up to the HIV-positive person to prove that s/he disclosed — and every one of these sexual situations is "he said, s/he said."
What we really need to do is create an environment in which people with HIV feel safe to disclose this information voluntarily to their sexual partners. HIV criminalization laws do nothing to foster that environment — and, in fact, contribute to greater reluctance to disclose. If people living with HIV are subject to criminal sanctions usually reserved for much more egregious offenses, then that could lead them to shut down and avoid disclosure of their status in an effort to avoid being made the target of one of these prosecutions. We have a long way to go before we will have reduced the stigma and discrimination surrounding HIV to a level at which people will begin to feel safe disclosing or being open about their status.
In the meantime, we all must recognize that choosing to have sex presents certain risks, and we all control the degree of risk with which we are comfortable. If your tolerance for risk is zero, then you shouldn't have sex with anyone — period. If your tolerance for risk is just above that, then you should only have protected sex within a long-term, committed relationship where the parties involved have been tested and shared the results. And you can keep moving up the scale of risk tolerance/sexual interaction from there. Trying to remain HIV negative by relying on another person to tell you their status — well, that plan is just designed for failure.
From a public health perspective, the current system of criminal laws and prosecutions doesn't make any sense – it doesn't encourage the behavior we want nor discourage the behavior we do not want. We should stop expecting people living with HIV to take sole responsibility for preventing the spread of HIV. Now that we know how to treat HIV and how to prevent its further spread, we need to focus on creating an environment in which people don't feel ashamed, stigmatized or targeted based on their status, and that is what HIV criminalization laws do.
