HIV criminalization

[Guest bbosouno]

http://poz.com/articles/florida_nondisclosure_1_23388.shtml?commentson=yes

This was a case recently in Florida where a 40 & 32 year old men did not reveal they were poz to a 16 year old they met on Grindr. Both were arrested and bail was over $400,000 for each. There is a lot of "gray" areas in this case which bother me when it comes to HIV criminalization.

- OK the kid was a minor BUT this kid ALSO chose to be with these guys, he was not forced into or coerced - it was free will. OK....the "older" men were just plain stupid choosing a minor in the first place but , again, this kid on Grindr choosing older men and choosing to do bareback sex does not sound like "some country bumpkin" and he was an example of "innocence" - definitely this kid has done it before...but this time the adults were caught. I also sense some sort of "set up" by this kid...someone had to alert the police...gee I wonder who that was.

- If you read online ads there is now the infamous " I'm clean you b2" ....seriously now... you are going to take someone's word for it? ( but Mr.Judge he said he was negative! )

- Unless you've been in coma for over 30 years...everyone know how HIV is transmitted including teens.

- Let's exclude the kid in this case now..."hookup remorse" so you're technically negative and have bareback sex with some stranger...and you find out some-how, some-way that he/them were poz or you test poz and you "hunt down" this alleged person and press charges...umm moron you had UNPROTECTED with a stranger, it was consenting sex between people - but - then suddenly you go into panic mode and call the cops - something is very wrong with this picture. You should also be arrested for stupidity

Ok just some random thoughts here, feel free to give opinions!

[xxww]

well im about to have a bunch of you guys hate me right now but it is what it is. to me if your know that your poz you need to say something at all times or shit like this will happen. i understand you feel like its a set up but if they didnt tell the kid they was poz then they got what they what they deserve. it makes me mad that most of the guys on here just think bareback means that you want to be poz thats not true, yes that may come into play but thats not all barebackers goal like half the sluts on here.

[fillmyholeftl]

It's ILLEGAL in the State of Florida to NOT DISCLOSE your status. The "other person" (minor or not) does not even need to be infected for you to be prosecuted for non-disclosure.

GE A TATTOO, its easier !

[Jimmy1212]

Not to mention that the circumstances of the hookup won't matter to this case because the kid was underage. In other situations various defenses might be available ... but not this one.

[Bttm2go]

When I was 15 I was having sex with older guys. Did I know all I should have, no. These guys should not have engaged in sex with this kid and at the very least should have disclosed their status. Saying the kid should have known about the risk is a kop out. Adults know better. I really don't mind the sex--they all wanted it, however, not telling the kid they were poz was wrong. They may now pay the price for their actions. And if you want to have sex with 16 year-olds, then get the law changed. Until then you are open to the risk of getting caught.

[rawTOP]

IMHO, the requirement to disclose that you're poz made sense before 1996 but hasn't made sense for over a decade now. It's not the same disease it once was. These days all the information is out there. If you're barebacking and neg it's your job to ask, not the other guy's to disclose. Make it a crime to lie about being poz, but don't require them to wear a scarlet letter.

The laws on consensual sex with "almost legal" teens needs to be revisited too. Kids grow up quickly these days and the law should reflect that. I feel like there should always be some special protections for kids under 18, but "absolutely not at 17 years and 364 days" and "go ahead and gangbang him a day later" - makes no sense to me.

But in each case the law is the law. They need to be changed, but in the meantime you have to abide by them.

[bearbandit]

The problem with disclosure laws is that they put all the responsibility on the person with HIV: what happened to the guy who's just tested negative making an effort to stay that way? Sure, it's an awkward question, but it's one we've been dealing with since the test was invented.

Prosecuting for exposure to HIV (with or without infection) is pretty dangerous ground too: already in the UK we've had someone prosecuted for not informing a sexual partner that they had herpes, though I must admit ignorance as to the outcome of that case.

The mere fact that it got as far as court is worrying. I've spoken to a number of people who've recently discovered they're HIV+ and all blame lack of information (!) and many have a chilling desire for revenge on the person who they think infected them. My personal opinion is that the only time HIV should be on a charge sheet is as an addendum to charges of rape or sexual assault, in the same way as herpes or other STIs sometimes appear.

[GermanFucker]

IMHO, the requirement to disclose that you're poz made sense before 1996 but hasn't made sense for over a decade now. It's not the same disease it once was.

The thing is: Even though quality of life has improved drastically for MOST poz guys, there is no guarantee that you are lucky. That goes both ways: Even though most guys are on meds, you only need to look around the forums here to see that NOT ALL are. If you are not on meds you are just as infectious as in 1996. Also while MOST guys do just fine with HIV, there are more just a few who have serious health problems because of HIV, be it because of HIV itself (e.g. cancer as a result of a compromised immune system) or because of existing chronic diseases like diabetes which make having an additional disease much harder.

With all due respect, IMHO the problem is the judicial system in the US. First "you" give judges almost absolute freedom and then you get afraid they might do the wrong thing with their powers and introduce counterproductive laws (3 strikes, mandatory minimums) just because of the scandal du jour.

In countries with legal systems based on the Napoleonic code you usually define the scope of interpretation and sentencing beforehand in the specific law and then rely on the judge to treat each case on its own merits - instead of collective hysteria.

These days all the information is out there.

Just because information is out there, doesn't mean that everybody is able to understand and apply it correctly. 50% of all Americans believe in creationism. It can be assumed that a large number of the religious types will not educate their children properly when it comes to HIV and condoms, with those teenagers relying on mouth-to-mouth prejudices and internet (mis-) information (like the AIDS-denialist nonsense). What holds true for the Castro or NYC doesn't necessarily apply to Kansas. Also there is the social component: Approx. 15% of all Americans lack the reading skills necessary to extract the relevant information from e.g. the internet.

The basis of a law must be that everyone is treated equal and that it makes realistic assumptions about public knowledge.

If you're barebacking and neg it's your job to ask, not the other guy's to disclose. Make it a crime to lie about being poz, but don't require them to wear a scarlet letter.

If you're barebacking and neg it's your job to ask, just like it is the other guy's job to disclose. Responsibility goes both ways. Also you indeed propose a separate set of laws for gay guys as opposed to straight people. Do you really want to open that can of worms?

IMHO generalizations just don't work. One should neither assign one side with ALL of the blame nor give one side NO responsibility. Rather I believe the only way to do justice is to look at each case seperately and judge the situation accordingly.

If a neg guy attends a bareback orgy, he has to assume at least some of the other guys are poz. If two guys meet on Breedingzone, the way of contact implies that the neg guy sought out bareback sex on purpose and is somewhat familiar with HIV/AIDS. On the other hand, if I were poz and take an 18 year-old schoolboy home from a rock concert, it would be my primary obligation to disclose, because nothing in what happened before could have made the boy jump to the conclusion I was. AND NO, my preference for bareback sex alone doesn't count jack. It could as well mean that I'm a married "hetero" and just never got the hang of using condoms.

IMHO: "One shoe fits all" just doesn't work. Sorry.

That is not to be meant disrespectful. I just happen to disagree.

[hungry_hole]

What I've said in other threads is that not disclosing HIV+ status is acceptable in a totally anonymous setting, like saunas, sex-clubs, parks, gloryholes. Nobody can come after you and say something like "He was on the other side of the gloryhole when he creamed my hole but he didn't disclose his HIV status".

But when the encounter is more personal the guy who is HIV+ is risking legal problems given that the "victim" (hardly a victim) may have information such as cell#, email, profiles, etc.

As it has been said here, we can place ALL the responsibility on the poz guys because everyone has to protect themselves if they want to stay HIV-neg. In other words, stealthing OK but only when it's anon.

[GermanFucker]

What I've said in other threads is that not disclosing HIV+ status is acceptable in a totally anonymous setting, like saunas, sex-clubs, parks, gloryholes. Nobody can come after you and say something like "He was on the other side of the gloryhole when he creamed my hole but he didn't disclose his HIV status".

But when the encounter is more personal the guy who is HIV+ is risking legal problems given that the "victim" (hardly a victim) may have information such as cell#, email, profiles, etc.

As it has been said here, we can place ALL the responsibility on the poz guys because everyone has to protect themselves if they want to stay HIV-neg. In other words, stealthing OK but only when it's anon.

Ethically speaking: No it's not. When it actually comes to infecting someone against his will, that is never ok.

If it isn't clear from when I said that the reaction should fit the offense, that also means that if the poz guy took every measure to reduce the risk by taking his meds and no harm was done, that he really shouldn't be crucified.

However, saying that stealthing / infecting is ok if you don't get caught is like saying it's ok for your employer (e.g. chemical company) to give you cancer, if he just has a good legal team. It's just not a sane basis for a legal system.

Also it's not realistic. If someone got infected at the sauna that way he'd probably have to ask around less than a week to get all the information he needs about the guy who bred him. Most likely it has happened before and a notorious gift-giver is just too juicy a topic for the world of gay gossip to skip.

[rawTOP]

If you're barebacking and neg it's your job to ask, just like it is the other guy's job to disclose. Responsibility goes both ways.

I disagree. I realize Europeans feel differently than Americans on the issue of personal responsibility. So what I'm going to say I think is only true in America because the community standards are different in Europe, but... Part of the American way of thinking is that YOU are the primary person who's responsible for your life. "Pull yourself up by your bootstraps", etc. For example, take "good Samaritan laws" (whether you're legally required to give help to someone who you see who's hurt). What's typical in the US is this...

unless a caretaker relationship (such as a parent-child or doctor-patient relationship) exists prior to the illness or injury, or the "good Samaritan" is responsible for the existence of the illness or injury, no person is required to give aid of any sort to a victim.

That's how we think in the US - HIV is one of the only times when one person is responsible to look out for the health of another person. We are a selfish society - and "pulling yourself up by your bootstraps" is applied even to people who are injured. It doesn't matter whether you agree with it - that's the American standard of morality.

Of course, you could say the poz guy is reponsible for the illness, but personally I think with high risk sex like barebacking, the person taking the risk is responsible. It's a bit like putting yourself in the middle of a shooting range and blaming someone else for getting shot when you shouldn't have been there in the first place.

In such a self-reliant milieux, the only reason HIV is treated differently is because 1) HIV was pretty much always a fairly quick death sentence (no longer true), and 2) people were scared of HIV (shouldn't be true anymore, but is to an extent).

What I'm saying is that HIV criminalization is "un-American". In America YOU are responsible for your health - no one else (unless they have an established legal relationship with you - like a parent or a doctor). There's good reason for this - if you put your health in the hands of complete strangers it's just stupid. But it's also completely stupid for someone who wants to stay neg to bareback with a complete stranger - which is most of the hookups off sites like BBRT, A4A & Manhunt. HIV Criminalization rewards stupidity by letting the stupid person punish the person who just wanted to fuck. Now imagine the poz guy was on meds, undetectable, and bottoming and no infection occurred... Why should the stupid/scared person get to harass a poz guy by filing charges against him when it was nearly impossible that anything bad could come out of it?

Now, in Europe they have much more of a communal approach to life. In that setting HIV disclosure laws make perfect sense. But not in the US.

[GermanFucker]

I disagree. I realize Europeans feel differently than Americans on the issue of personal responsibility. So what I'm going to say I think is only true in America because the community standards are different in Europe, but... Part of the American way of thinking is that YOU are the primary person who's responsible for your life. "Pull yourself up by your bootstraps", etc. For example, take "good Samaritan laws" (whether you're legally required to give help to someone who you see who's hurt). What's typical in the US is this...

That's how we think in the US - HIV is one of the only times when one person is responsible to look out for the health of another person. We are a selfish society - and "pulling yourself up by your bootstraps" is applied even to people who are injured. It doesn't matter whether you agree with it - that's the American standard of morality.

I think that this is a very interesting and highly pertinent point. Europeans do indeed see things differently. But I would go a bit further than that. Europeans seem to feel more comfortable with shared responsibilities and complex situations, whereas in the US I feel this constant need to find someone who is solely responsible for what is wrong with a situation. From a European perspective the whole system of nuissance lawsuits and excessive punitive damages looks bizarre. And I really believe that this black-and-white dychotomy, that need to make a point rather than seek justice is weighing on this subject.

It's a bit like putting yourself in the middle of a shooting range and blaming someone else for getting shot when you shouldn't have been there in the first place.

So the question is: Is bareback sex rather like working for a chemical company (my example) or standing in the middle of a shooting range (yours)? I totally get that for you as a gay New Yorker it looks like the latter. But again, I think that to be the basis of a general law you have to look at the whole spectrum, geographically as well as sexually, and that's where the similarities begin to vanish. Also you have to look at what the person "pulling the trigger" would realistically assume. On a shooting range I would NEVER EXPECT someone to just step in front of my gun. The likelyhood is 0.0something percent (the stray mental case or suicidal person). On the other hand: EVERY man likes bareback sex and about 50% of all gay men have it, whereas the numbers of HIV positive gay men are much lower. So here the likelyhood that the other guy is neg is very high indeed.

Because if there is practically 0% chance of something happening, I have no responsibility of taking precautions against it. If I realistically can EXPECT problem, I have to take them into account, lest I behave negligently.

If I remember correctly, there are negligence laws in the US, as well.

Of course, you could say the poz guy is reponsible for the illness, but personally I think with high risk sex like barebacking, the person taking the risk is responsible.

But then we'd have to talk representation of risk. Just a thought experiment: About 1% or so of Americans are poz. That would be the risk on is taking by having unprotected sex with just anyone. Many activities or products carry similar(ly low) risks. But if for some reason your product were to carry a much higher risk and you were to misrepresent that, you'd be liable even in the US. Ralph Nader built a career on that. But with HIV / AIDS the need to assign blame doesn't solve anything. Only open discussion and share responsibility will.

In such a self-reliant milieux, the only reason HIV is treated differently is because 1) HIV was pretty much always a fairly quick death sentence (no longer true), and 2) people were scared of HIV (shouldn't be true anymore, but is to an extent).

But you have to agree that even in this day and age, for many guys (absolute numbers, not necessarily a majority) HIV is a serious, severe disease which they wouldn't wish on anyone else (even if others enjoy having it).

What I'm saying is that HIV criminalization is "un-American". In America YOU are responsible for your health - no one else (unless they have an established legal relationship with you - like a parent or a doctor). There's good reason for this - if you put your health in the hands of complete strangers it's just stupid.

But the concept of total self-reliance hasn't been a realistic way of life for over a century. If you aren't Amish and have thus built your house yourself, you put your health into hands of others: landlords and largely anonymous contractors, and largely you have to hope that they haven't gifted you with toxic mold. If you don't farm you rely on supermarkets not to poison your food and for most guys (who aren't self-employed) you have to rely on your employer to create danger-free working environments.

So the question would be: How much of a strangers do you remain if you exchange bodily fluids? Is it more or less intimate than being landlord and tennant?

But it's also completely stupid for someone who wants to stay neg to bareback with a complete stranger - which is most of the hookups off sites like BBRT, A4A & Manhunt.

But stupidity is part of human nature, especially when it comes to the propagation of the species. Sex is not meant to be rational.

HIV Criminalization rewards stupidity by letting the stupid person punish the person who just wanted to fuck.

As before: I do agree that criminalization doesn't make much sense if nothing happened. In the case of an actual infection of a non-HIV-fetishist: HOW IS THAT POSSIBLY A REWARD?

Now imagine the poz guy was on meds, undetectable, and bottoming and no infection occurred... Why should the stupid/scared person get to harass a poz guy by filing charges against him when it was nearly impossible that anything bad could come out of it?

I actually didn't disagree with you on that specific set of circumstances. However, I'd like to point out that this ideal constellation cannot form the basis of a general law that says: "If you're barebacking and neg it's your job to ask, not the other guy's to disclose", as you suggested.

That's why I am against both extremes. One should neither automatically blame one side nor the other, but rather look at the SPECIFIC SITUATION. And any sane law should take that into account.

As to the disclosure issue, I could imagine something along the lines of: You have to disclose EXCEPT when all scietifically recommended precautions for having safer sex are being taken (which can be condoms or a med regime, subject to research and cyclical reevaluation). Which leaves most poz guys alone, but makes HVL AIDS fetishists disclose, which seems only fair to me.

Now, in Europe they have much more of a communal approach to life. In that setting HIV disclosure laws make perfect sense. But not in the US.

Don't get me wrong, I'm not talking morals here (morality laws regarding nudity, drinking in public etc. are already ridiculous in the US). But isn't there something as basic human ethics, just an extrapolation of the golden rule, that applies here as well, beyond all that cultural bias?

But either way, you for sure made some interesting points.

[rawTOP]

So the question is: Is bareback sex rather like working for a chemical company (my example) or standing in the middle of a shooting range (yours)?

I've actually struggled to find a good analogy and haven't come up with one yet.

But if you don't know the guy's last name, and possibly not even his first name, why should he tell you his HIV status? If you've gone on a date - fine. If he's your boyfriend, fine. But on an anonymous hookup?

What's a good analogy for that sort of scenario?

But then we'd have to talk representation of risk. Just a thought experiment: About 1% or so of Americans are poz. That would be the risk on is taking by having unprotected sex with just anyone. Many activities or products carry similar(ly low) risks. But if for some reason your product were to carry a much higher risk and you were to misrepresent that, you'd be liable even in the US. Ralph Nader built a career on that. But with HIV / AIDS the need to assign blame doesn't solve anything. Only open discussion and share responsibility will.

The percentage of gay guys who are poz is well above 1%. I mean some studies have said that soon 40% of gay black men will be poz in some urban areas. The percentage of barebackers who are poz is probably well above 50% - at least the ones you find on hookup sites doing hookups with random strangers.

The NY subway system kills one of his customers every week. It's been like this for years. Only in the last few months have they started mentioning it to people.

But you have to agree that even in this day and age, for many guys (absolute numbers, not necessarily a majority) HIV is a serious, severe disease which they wouldn't wish on anyone else (even if others enjoy having it).

True, which begs the question why a neg guy would let a complete stranger cum in his ass without asking the guy's status?

But the concept of total self-reliance hasn't been a realistic way of life for over a century. If you aren't Amish and have thus built your house yourself, you put your health into hands of others: landlords and largely anonymous contractors, and largely you have to hope that they haven't gifted you with toxic mold. If you don't farm you rely on supermarkets not to poison your food and for most guys (who aren't self-employed) you have to rely on your employer to create danger-free working environments.

But all of those things are considered generally safe. There's a reason why barebacking is called UNSAFE SEX. Unlike those other things, there's no presumption of safety.

But stupidity is part of human nature, especially when it comes to the propagation of the species. Sex is not meant to be rational.

But in the US people are still generally responsible for their actions - even the stupid ones. I mean if you make a dumb decision, it makes sense that you pay for it.

As before: I do agree that criminalization doesn't make much sense if nothing happened. In the case of an actual infection of a non-HIV-fetishist: HOW IS THAT POSSIBLY A REWARD?

It indemnifies stupidity. Tells them they were completely justified in being stupid and the consequences (their fear of being poz for the few months they have to wait for a conclusive test) is something someone else should pay for.

The problem with the law is that it's not shared responsibility - the responsibility is totally on the poz guy. The neg guy is allowed to be stupid and make mistakes, but no leniency is given for the poz guy to forget to mention he's poz. It's just fucked up...

[genericuser]

I saw this story on Queerty last week and I'd highly suggest you guys read the comments posted there because they bring up a lot of great points:

http://www.queerty.com/hiv-positive-men-jailed-for-not-revealing-status-to-16-year-old-grindr-hookup-20130228/

From reading the comments there I'd agree that there is definitely something is fishy going on that hasn't been reported in the media.

One of the commenters there laid out the dates reported in the paper and proved that the 16 year old could not have tested positive or even experienced symptoms of HIV (fuck flu) from the time they met to the day they got arrested.

The 16 year old lied to Grindr and had to say he is over 18 to join, he hooked up with dudes he just met, he had raw sex with them. What makes a 16 yr old go to the cops? I mean I was doing the same shit when I was 16 but the last thing I'd wanna do is turn a secret hookup my parents were clueless about into front page news. I don't get it, doesn't make sense to me.

[fillmyholeftl]

As i mentioned, in FLORIDA, one does not have to be infected for charges to be filed. Just be EXPOSED. I am not saying this backwards state is correct in having these laws on the books, just stating, what I know to be the background in a case here in Florida