Hiding one’s HIV status might be wrong, but it shouldn’t be a crime

hivPhiladelphia Weekly
–Josh Kruger

In October, a college student in Missouri was charged with “exposing sexual partners to HIV.” As the St. Louis Post-Dispatch and various national news media recently reported, 22-year-old Michael Johnson allegedly engaged in sex acts in his dorm room with more than 30 individuals who may not have known of his HIV+ status—and, further, may have videotaped the encounters without his partners’ consent.

Naturally, everyone under the sun is ready to condemn this young man and trot him out into the public square for a hanging. Not so much for the videos, which, if they were in fact made without consent, represent a betrayal of trust—but for the much larger issue that, of course, people with HIV should be required by law to tell their sexual partners, right?

Well—no, actually. They should not.

Let’s break that down slightly. Should they tell them? Of course. Should they be required to? No.

HIV criminalization is the idea that HIV-positive individuals should be held to a higher legal standard than HIV-negative individuals. Based on the fact that HIV is a serious medical condition that, if left untreated, will kill the vast majority of those infected, 34 states in the U.S. have enacted laws by which engaging in certain sexual activities—including consensual sex—while being HIV-positive can constitute or aggravate a criminal offense. A great many of these statutes came about during the ’90s, when referring to AIDS as a “death sentence” was common—first as an awareness tactic, then as a cliché. And, you know, these kinds of laws seem to make intuitive sense as a way of stemming HIV’s spread. They feel right.

But they aren’t.

Let’s look at one of those specific laws here at home. According to the AIDS Law Project of Pennsylvania: “In Pennsylvania, prostitution is a misdemeanor unless one of the parties knows he or she is HIV-positive [in which case it is a felony]… Actual HIV transmission is not required for prosecution under this statute. This statute does not differentiate between acts that carry a risk of HIV transmission and those that do not. The use of condoms or other protection is not a defense.”

Let that sink in for a moment. Here in Pennsylvania, even if you use a condom, even if you are on antiretroviral therapy—which, for the record, when used together with condoms, reduces the risk of HIV transmission close to zero—and even if you do not transmit HIV to anyone, you can serve up to seven years in state prison for conducting sex work while being HIV-positive. Regardless of consent, risk or outcome, the mere fact that you are HIV-positive aggravates this offense.

That’s discrimination, plain and simple.

We have two sets of laws, one for the HIV-negative and one for the HIV-positive, and we as a society are perfectly okay with this situation simply because HIV scares people. We are okay with it because it’s much easier to place blame on the HIV-positive than it is for some folks to come to grips with their own culpability for their own behavior.

And, because the 20,000 individuals in Philadelphia living with HIV/AIDS, including myself, scare a good number of people, we ourselves are supposed to be okay with our legal rights being relegated to second class.

It’s not okay.

Sure, it’s much easier to pass the buck. It’s much easier to blame others, to evade responsibility for one’s own possibly unseemly actions—like, for instance, hooking up with someone you’ve only met on Facebook, whose pictures are hot. You might be so aroused during such an encounter that you’d not want to bother with condoms. And you might well regret the situation after the fact—might feel ashamed that you got caught up in the moment and didn’t use a condom. Later, you might take an HIV test and realize you’re HIV-positive—likely because of that encounter you had, though if you’re sexually active with other people, too, it can be hard to turn that probability into a certainty.

None of that is fair. It isn’t nice, and it certainly doesn’t make anyone feel good.

The fact remains, though, that life isn’t fair. And the other fact remains that we are all responsible for our own choice of sexual partners.

There are unconscionable assholes like Michael Johnson in the world. There are a lot of them. Being an asshole, however, is not illegal. Nor should it be.

Last time I checked, targeting a group of individuals for something they cannot control—that is, a medical condition that, however they acquired it, they cannot stop having—is discrimination.

We as a society can do much better. Making laws that just sound right and make us feel better—well, that’s a rather cavalier way to handle whether or not people deserve to lose some of their freedoms.

Individuals have the tools to protect themselves against HIV/AIDS. We have condoms; we have HIV-positive individuals on medications that nearly eradicate all possibility of transmission; we have medicines that can help protect HIV-negative individuals from acquiring HIV, too. The fact that some folks don’t ask the right questions—or, rather, that some folks don’t understand that their number-one responsibility is to protect themselves and act accordingly—doesn’t make that failure anyone else’s responsibility.

HIV is a fact of life, throughout the nation and around the world. It has now been more than 30 years since this pandemic started. Blaming others because we weren’t careful enough to dodge it when we actually do possess the tools to do so—that’s nothing short of a willful denial of reality.

People with HIV should be under no legal obligation whatsoever to tell anyone about their HIV status. It may be immoral for an individual to withhold that fact from a partner; he may be a coward and a devil and a horrible, horrible person. But he shouldn’t be a criminal. Because people without HIV have responsibilities, too.


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