Thursday, March 25, 2010

HIV, Criminal Conduct, and Reality

A man in Minnesota has been charged with willfully spreading HIV. According to the story and video clip, the man had sex with multiple partners, did not disclose his status, and at least one person has tested positive. In the cases in the video clipped, the man is NOT charged with rape, though I have heard from a friend of mine that he is charged with sexual assault from an earlier incident in February. While I am not going to comment on this man's guilt or innocence, I sure as hell am going to comment on the situation. The following blog post may seem a little disjointed, as I co

Did you listen to the story? Mike Freeman, Hennepin County Attorney, needs to check his facts. He said, "The man didn't have it [HIV] before, and a month later he did." Ummmm....any doctor will tell you that it takes, in general, a minimum of 3 months to have built up enough antibodies to detect HIV. Which means that the "victim" was having unprotected sex with more than just the accused.

Also, if the men were having unprotected sex with this guy and NOT asking his status, and there is no evidence that the dude lied, then it is not a leap to believe that they had unprotected sex with other men. How do they KNOW that this is the guy that transmitted HIV to them? Where the fuck is the responsibility on their end? Why is the blame/shame/burden always on the positive individual?

Also, were there drugs involved? I am going to go ahead and say most fucking likely. Regardless of the outcome, the accused's life is ruined.

As an HIV+ man that has struggled in the past with drug addiction, I can tell you that almost 99% of the time no one was asking anyone else about their HIV status when crystal meth was involved.

If you choose to have bareback sex then you CHOOSE the risk of contracting HIV. That choice is on you, the burden is on you, and the responsibility for the action is on YOU. Unless you can prove that you were RAPED or the sex was not consensual in some other way, the burden is on you. It was your choice to believe the man or to trust the man with your life, and now that you found out you made the wrong choice, you are going to lay the burden on someone else? BULLSHIT.

I am not perfect, but this case is more than just about the one dude (I hear that he is also charged with rape...that is another story all together)...but the precedent this will set if he is convicted on the spreading HIV charge as opposed to a rape charge is going to create such an overwhelming fear in positive people and a justified one...what if you don't disclose your status, you are having protected sex, and the condom breaks? Are you then a felon? What if you honestly believe you are HIV-, have unprotected sex, and then you find out you are after having infected someone else? Even your partner? Are you a felon? What if you and the party are both engaged in the use of illicit drugs....I am not perfect, and I carried a lot of guilt for a long time for my actions when actively using, but I will be damned if I carry the burden or the HIV+ community should carry the burden for the choices of others. It's just that simple, unfortunately the apparatus of the state and 20 years of fear mongering, gay baiting, and oppression are on the side of the Hennepin County attorney. And let's not forget that Mike Freeman is an elected official. The county attorney office led directly to the Senate for Amy Klobuchar. He is going to sensationalize this case as much as humanly possible to set himself up runs for hire office. The good tough attorney got this diseased predator off the street. What could be sweeter on the campaign trail?

I am curious to see what other cases Mike has made sure got into the paper? What other cases are on his case load? Why this case? Why this incident? I will tell you...H-I-V.

The continued stigmatization and scapegoating of positive people for the actions of negative people is based in shame and fear--the shame of the positive person that leads him or her to not disclose and the shame of the newly positive person that seeks to shed his shame by blaming everyone else for his HIV status except the person responsible: himself.

Let the witch hunts begin.


  1. It takes two to tango! I guess I just figured that everybody already understood that barebacking with or without disclosure is a risk for all parties involved.

    Thanks for the great read as always.

  2. Brandon, I completely agree with you, the criminalizing of spreading HIV is not black and white, where simply not disclosing (specifically because the individual with HIV may not know they even have it) should not be all a prosecutor needs to send someone to jail, especially if there was no intent to cause harm.

    And I also hear the concerns of HIV activists, who say these kinds of laws--which surprisingly exist in a lot of places--have the adverse of affecting people's willingness to go out and get tested. Which ultimately should be the first concern.

    However, what would you say should be the case if you do have someone who is HIV+, knows it, and maliciously chooses to go out and spread the disease to others either by lying or omitting from telling them (and I think in some states you are legally required to disclose your status)? In that case do you not have a clear intent to cause harm, and if so, is there not a discernible reason to prosecute that person?

  3. JC:

    Again, I repeat, unless the person rapes or sexually assaults the other person, I do not think criminal penalties should apply. Even if the scenario which you are describing, if the partner of the poz person is consenting and chooses to forgo using a condom based on the word of his sex partner, then the ultimate burden is on him/her. Anything else puts all the responsibility on the positive person.

    That does NOT exculpate the positive person. In many states, MN for example, there is an entire division in the health department that understands the stigma involved and actively looks to support poz folks that do not disclose and end up infecting other people. Perhaps there is a civil and therapeutic alternative to the criminal justice system for consensual sex where the poz person did not disclose...but I can't get behind criminal penalties for consensual sexual behavior. It's wrong. Those laws are based in stigma, and they put all of the burden and responsibility on the HIV positive individual. And, unfortunately, the law is not discerning enough to protect someone that just wanted to be touched but because of the shame and disgust heaped on poz people did not disclose. We are talking about mental health here...and until there is no stigma left in being HIV positive, the guns of the system will continue to be trained on poz people.

  4. Brandon,

    I have not yet read the statutes, but I agree with you in that the general consensus is that the laws are written too broadly and do not take into account a lot of factors. Which understandably reinforces your argument that these laws were written not being fully thought out and reactionary.

    That being said I don't think that voids of the laws of all its merits, and I think even here you agree somewhat, the problem for you primarily seems to be the scope and opaqueness of the law and concerns of how it could applied and enforced.

    And I just want to repeat that I fully share those concerns.

    However, I have a reservation around what you bring up about consent and putting the burden ultimately on the person who does not have the virus and consents to unprotected sex. In giving consent I think we all presume that the person is aware of all the facts, or at least all of the facts to the best of knowledge of their partner, and thus takes on the assumed risks. However, if their partner knows their status, and either does not tell their partner or denies that they do, how can the non-positive partner fully weigh the implications of having unprotected sex if they do not know.

    In that situation I would not necessarily classify that as a malicious intent to cause harm, but what if you did have a person who was actually purposely finding sexual partners deceiving them in an effort to spread the virus. The sex itself might have been consensual, but ultimately that was not the malicious act, merely the vehicle which was used to do so.

    Extrapolate your argument further: If you hire a chef and do a decent background check, and that chef turns around and *maliciously* poisons you, based on your argument it seems you would say that the ultimate burden falls on person who was poisoned, because they did not take enough preventative steps. But I don't think that is a very good argument. Certainly you can there is aspect of neglect for one's health and personal responsibility, but where was the malicious intent in that.

    But I think the larger argument is ultimately the debate over balancing the public good with individual liberty, and the slippery slope that can descend from either.

    Needless to say, you've given me a lot to think about.


Thank you for sharing your thoughts, feelings, and insights. And thank you for reading!