By Dawn Wolfe Gutterman
FERNDALE – On July 24, Ferndale police thought they were responding to a routine disturbance call. Instead, they are now investigating a man who has been accused of failing to disclose his HIV positive status before having unprotected sex.
When they arrived at the site of the disturbance, they learned that a Detroit man who had been staying at the apartment had an outstanding misdemeanor warrant.
After they arrested the Detroit man on the warrant, the Ferndale man with whom he had been staying claimed that, during the course of their intimate relationship, the Detroit man had failed to disclose his HIV positive status.
Now, Ferndale police are investigating the possibility that the 38-year-old Detroit man has committed a felony under Michigan law.
"As with any alleged crime, we have some investigation to do," said Lt. Norm Raymond of the Ferndale Police. "We have to show that he actually has HIV."
The suspect has been released pending the issuance of a warrant and further investigation, including the release of the man's medical records, said Lt. Raymond.
If convicted, the Detroit man could be sentenced to four years in prison under the law, which was added to Michigan's health code in the early 90s.
Local and national AIDS activists had mixed feelings about laws that mandate disclosure of one's HIV status before engaging in sex.
Mark Peterson, the technical assistance coordinator at the Midwest AIDS Prevention Project, said that MAPP is working with The Center for AIDS Intervention and Research at the University of Wisconsin to study the impact of HIV disclosure laws.
"What this law seeks to do is to legislate behavior, and that's a very difficult thing to do," he said.
Peterson stressed that his agency is very proactive in helping clients disclose their status.
"When we talk about disclosure, MAPP's position is that this is an important and beneficial thing to do, not only for the person living with HIV but for their friends, families and partners," he said.
Peterson said that the greatest risk of exposure comes not from people who know their HIV positive status, but from people who do not.
"We know that the vast majority of people with HIV do disclose their status – it's the small number who don't that make newspaper headlines," he said. "About 31 percent of people living with HIV don't know their status. HIV is largely being spread by people who don't know it. We find that when people do get tested and they test positive, they do limit the risk to others."
Kendra Cleaver, a Michigan attorney who specializes in HIV and AIDS related law, said, "There's a very real possibility that [the law ] might discourage people from knowing their HIV status," because it is necessary to prove that a suspect knew his or her positive status in order to be convicted.
Cleaver also expressed discomfort with the gap between the law and the science of HIV testing.
"The nature of HIV is such that there is a window period between which you can be infected and before your test results will even show it. This law does not adequately address that," she said.
Cleaver added that, though the law's purpose is to promote personal responsibility, it "doesn't aggressively promote personal responsibility [for] those who are out there dating, because we should be asking" prospective sexual partners about their HIV status, she said.
"The real question you should be asking your partner is, 'Do you think you're positive? Have you engaged in any risky behavior?'" she said.
Keith Folger, the director of programs for the National Association of People With AIDS, agreed.
"Disclosure does not guarantee safe sex; safe sex is two people's responsibility," he said. "Disclosure cannot be the be all and end all – it has to be the combined responsibility of both people involved."
In addition, Folger said, "In some communities, acknowledging your status is dangerous" due to the stigma attached to HIV/AIDS.
"We know any criminalization of HIV transmission does not help HIV prevention," he added.
