Can you go to Jail for having Sex?

Whether it is listening to the sexually explicit lyrics of today's popular music or watching the frequent commercials where "sex sells" is the underlying message, the United States is more than waist deep in the culture of sex. But in what some have branded the age of sexually transmitted infections, what happens if you can go to jail for having unprotected sex?

More specifically, what are the legal repercussions of a person passing the HIV virus to another? The last eight weeks have seen three major stories come out of North America. In Toronto, a man was convicted of two counts of first degree murder and ten counts of aggravated sexual assault. He infected twelve women two of which died of cancer that spread from their compromised immune systems. In May, another Toronto man was charged with attempted murder for not disclosing his status to his partner and allegedly transmitting the virus. Lastly, a man in Texas was charged with six counts of aggravated sexual assault with a deadly weapon.

People who knowingly break laws and inflict harm on others deserve to be prosecuted under the law. However first-degree murder is one of the highest forms of convictions in common law systems and generally requires establishment of a certain state of mind, such as pre-meditated or malicious intent. Therefore the crux of the issue lies in intention and knowingly putting the partner at risk without disclosing ones HIV status; both are not cut and dry. The probability of passing the virus during unprotected sexual contact is not 100%. Much of it has to do with viral loads (the smaller the viral load, less chance of transmission). What if a HIV positive male indiscriminately slept with multiple partners without using protection but never knew his status (remember statistics estimate 20% of the US population with HIV does not know their own positive status – roughly 200,000 individuals). What category would he fall into if a partner (who agreed to consensual sex in the first place) pressed charges? Do both parties assume the risk if no condom is used? What if his last HIV test was negative so he thought it was safe not to use a condom? Well, it takes two to eight weeks for the body to build the antibodies to HIV for a test to signal positive. I think you get my drift. The issues are complex and need to be determined on a case by case basis, which is why public health and HIV/AIDS aficionados are hoping a precedent has not been set with the recent Toronto cases.

The public health voices understand that combating HIV/AIDS within a community is a combined effort of treatment and prevention. To ensure success many criteria need to be met, one is strong emphasis on getting tested. In other words, we should be encouraging testing. In resource rich countries increased testing can be argued to reduce the spread of the virus because more people will be on HIV medications. For instance, getting as many people on medication will lower the viral load within a given community - an argument made by Partners in Health with their "Public Health for the Public Good" approach. If a precedent for attempted murder or first degree murder charges has been established it will only frighten people from getting tested. Why know your status, better to plead negligence.

Another concern is fear of discrimination. It cannot be missed that these high profile cases increase the stigma associated with HIV. We should recall the hoopla following one inmate's conviction of attempted murder for spitting at an officer (no case has ever shown transmission through saliva). It can also not be lost in the media attention that cases in which HIV positive individuals intentionally and knowingly transmit the virus are the fringe minority. In the Bottom Billion, Paul Collier argues if you take a large enough sample of any population you are going to end up with the normal percentage of psychopaths and mentally disturbed people. Do we want these few creating an even deeper hole for the HIV positive community to climb out of?

How do we establish intent or malice? Can we prove without a shadow of a doubt that one person infected another? Do we mandate disclosure? What about civil damages? What if someone passes on multidrug resistant tuberculosis? The majority of these questions will come to light at some point in the future as more and more cases come forth in the criminalization of HIV/AIDS. I caution that each case be treated as independent where the facts and sentencing coincide accordingly. What all people, HIV positive and negative, should take out of these stories is the absolute necessity of being responsible if you chose to be sexually active. What is responsible you ask? It's the topic of next week's blog.

*** Footnote From the CDC ***
The proper and consistent use of latex or polyurethane (a type of plastic) condoms when engaging in sexual intercourse--vaginal, anal, or oral--can greatly reduce a person’s risk of acquiring or transmitting sexually transmitted diseases, including HIV infection.