Is it a crime to expose someone to HIV?

In two states, HIV-positive men face penalties for unsafe sex

By Mary Elizabeth Williams

Senior Writer

Published September 12, 2014 6:22PM (EDT)

  (<a href=''>CatLane</a> via <a href=''>Shutterstock</a>)
(CatLane via Shutterstock)

"We’re not trying to criminalize sexual behavior here. We are trying to protect the public’s health." That's what  Seattle & King County’s HIV/STD Control Program's Public Health director, Dr. Matthew Golden, says. But two recent cases involving the behavior HIV-infected men raises the question of what kinds of sexual behavior should be.

In Washington state this week, King County Superior Court Judge Julie Spector ordered an unidentified man known only as "AO" to obey a cease-and-desist order from the public-health department "requiring him to attend counseling and all treatment appointments made by public-health officials." According to the Seattle Times, health officials say the man tested positive for HIV more than six years ago, and in the past four years "is believed to have infected eight adult partners." He was originally served with cease and desist papers over the summer, but when he failed to show up for his most recent medical appointment earlier this month, the health agency filed for enforcement.

Without divulging the full details of the case, Dr. Golden said that sexually risky behavior, as long as it is consensual, "is a decision you’re entitled to make in this society," but that "This is not an instance where two knowledgeable consenting adults took a risk." He adds that "repeatedly coming up as being named as a sex partner for people newly diagnosed with HIV" poses a public health risk, one that the agency is by state law permitted to try to curtail. And though he says that "The goal here is not to send the patient to prison; the goal is to get him to adhere to the health order," if AO refuses to comply, he faces fines and possible jail time.

And in San Diego this month, a similar case has been unfolding, one in which 29-year-old Thomas Guerra pleaded not guilty recently to a misdemeanor health and safety violation after being accused of knowingly infecting an ex boyfriend with HIV. His accuser says that though Guerra assured him he was HIV negative, after he was diagnosed himself, he learned that Guerra has known of his status for seven years. And a man who claimed to be a former partner of Guerra's told a local news affiliate that Guerra "would tell people he was HIV-negative, have sex with them and then brag about it." If convicted, he could face a $1,000 fine and six months in prison. In the meantime, the judge has ordered off all dating sites, including Grindr.

For as long as there have been sexually transmitted diseases, there have been ethical questions about disclosure and transmission. The CDC says that there are currently laws pertaining persons with HIV in 33 US states. In 24 of them, a person who knows he or she is positive is required to disclose that information to a sexual partner, and in 14, he or she is required to tell it to a needle sharing partner. But it also notes that most of those laws do not reflect current treatment protocols for HIV, and that "most do not account for HIV prevention measures that reduce transmission risk, such as condom use."

As Ross Von Metzke wrote just earlier this month in the Advocate, the HIV and AIDS crises are far from over. He soberingly notes that there has been "a 132.5 percent increase in new infections between 2001 and 2011 among gay and bisexual men who are between the ages of 13 and 24." How do you stop someone determined to have unprotected sex -- and leave partners in the dark? Demanding he keep his medical appointments or stay off Grindr is a small, possibly futile gesture at best. High risk behavior happens, and when it happens between individuals who consent, it's hard to understand but it's still a private act. But more than thirty years into the AIDS epidemic, sex still takes more than communication and trust. It takes awareness, and unflagging self-protection. It takes a lot more than an intervention from public health officials. And going to bed with somebody on faith alone is still a deadly game.

By Mary Elizabeth Williams

Mary Elizabeth Williams is a senior writer for Salon and author of "A Series of Catastrophes & Miracles."

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Aids Hiv Public Health