Knowing your HIV status is important and for many of us the issue of HIV status is personal and not something we want broadcast to a whole bunch of people. While you may not want to make a public announcement regarding your HIV status, disclosing your HIV status to any potential sex partners is important and I’m about to explain why based on legal action that has been taken against some men who have failed to declare their HIV status prior to engaging in sexual intercourse with others, even when using a condom or participating in what may be considered a low-risk sexual activity.
On a personal note, it is important for me to know my own HIV status and I get tested regularly based on my sexual patterns. Because I mainly have unprotected sex with my boyfriend (and he mainly has unprotected sex with me), we both get tested for HIV every 6 months. Our most recent HIV test results showed that we are HIV-negative. When either of us have an increase in the number of sexual partners, we get tested every 3 months. Just because the number of sexual partners I have had during the past few months has been limited to my boyfriend, the number of partners can fluctuate and as a result my HIV testing frequency also gets adjusted.
I recommend speaking to a healthcare professional to obtain a suitable HIV testing regime and stick to the recommendation. As I am not a qualified healthcare professional, it’s important for you to seek professional advice from a suitable medical provider. I have decided on a 6 monthly testing regime for myself during lower levels of risk and 3 monthly when my level of risk increases during encounters with other partners or when my boyfriend has encounters with other partners. Once we get tested regularly to make ourselves aware of our HIV status, it’s important to use the information wisely.
If you have not heard about some of the legal ramifications regarding HIV disclosure, what I am about to write may surprise or even shock you, because what may seem like a simple sexual encounter with someone could turn you into a criminal and land you in jail as a registered sex offender. I am going to highlight some of the legal outcomes that people have found themselves involved with in the Midwestern American state of Michigan. In this state, prosecutors and judges still consider HIV infection to be a death sentence and are dismissive of scientifically grounded arguments about transmission risk and life expectancy, according to an article published at Aidsmap.
The article states that in Michigan, as in many other states of the US, the law does not concern the actual transmission of HIV, but sexual contact when a person with HIV has not disclosed their HIV status. The law defines sexual contact in an extremely broad and inclusive way, so even low-risk or no-risk activities such as oral sex or a finger entering the anus are covered. The use of a condom is not a defense. HIV disclosure is a requirement based on any sexual contact with another person.
Trevor Hoppe of the University of Michigan reported his findings at the 19th International AIDS Conference (AIDS 2012) in Washington DC. He searched police records, local newspaper reports and court records to identify as many cases as possible from when the first Michigan case took place in 1992 up until 2010. There were 56 convictions identified and Trevor Hoppe had enough information to examine 30 cases in more detail. In only 2 of the 30 cases there was an allegation of HIV transmission, where all of the other cases involved the allegation of non-disclosure.
I highly recommend you read the Aidsmap article by following the link at the bottom of this page, because further statistics and in-depth analysis can be found in the source document and I didn’t want to copy everything into this article, although I have included some of the information. It’s important to note that the cases highlighted are not specific to men who have sex with men. I find Aidsmap a quality resource and recommend you bookmark the site, because there are interesting articles and resources published there.
The Aidsmap article states that most defendants settled their cases through plea bargaining, where they admitted guilt and did not have to have a full trial. This led to the average jail sentence of just over 20 months, whereas those who exercised their right to have a jury trial were punished more harshly, with an average sentence of over 50 months. This is an example of how important disclosing your HIV status to another person is, because a moment of sexual pleasure can lead to a long time of misery if you fail to take responsibility of disclosing your HIV status to potential sex partners.
It’s important to point out that HIV transmission does not need to occur for a person to be guilty. Trevor Hoppe examined the court transcripts of 26 cases in detail and was particularly interested in how the consequences of HIV infection were described. He found that prosecutors and judges frequently made analogies with death, with the analogies used occurring in 6 of 7 cases from 2007 to 2010. The findings discovered that the courts were usually skeptical and dismissive of arguments about effective HIV treatment, the life expectancy of people with HIV and actual transmission risks.
The article highlighted a case involving a person who received a 25 year jail sentence in Iowa who also spoke at the conference. Nick Rhoades was charged under a section of the law entitled ‘criminal transmission of human immunodeficiency virus’, where actual transmission does not need to occur for a person to be guilty. In the case of Nick Rhoades, no transmission occurred, he used a condom and his viral load was undetectable. Nick Rhoades was put into a maximum security jail and kept in solitary confinement for the first 6 weeks, where he only saw visitors for 20 minutes a week. The article further states that following advocacy work, Nick Rhoades was released from jail after 13 months, but is now a registered sex offender for the rest of his life.
While this article has identified both Michigan and Iowa, this kind of prosecution occurs in other parts of the United States as well. According to the article, the country that prosecutes the greatest proportion of its people with HIV is the United States of America, where the laws used are state laws, rather than federal laws. The article points out that the states in which prosecutions are most likely are in the Midwest, including South Dakota, Idaho, Iowa, Michigan, Louisiana, Tennessee, Illinois, Missouri, Indiana, Ohio and Oklahoma. Other countries included in the report for prosecutions include Bermuda, Malta, Sweden, Australia, New Zealand, Finland, Norway, Austria, Denmark, Canada, Czech Republic, Switzerland, Hungary and Singapore.
I urge everyone to get tested, know your HIV status and ensure that you disclose your HIV status to anyone prior to having a sexual encounter with them. It’s important to note that it doesn’t matter whether a condom is used or not, it’s still important to disclose your HIV status. Remember that when you have sex with someone, you are responsible for your actions, so please remember the importance of disclosing your HIV status, because you don’t want a sexual encounter to be something you regret for the rest of your life. It’s also respectful to let others know about your HIV status so they can make an informed decision about whether or not they wish to proceed with a sexual encounter. Life is all about making choices and you need information to make these decisions.
- In the real world HIV has changed; in the courtroom it is still the 1980s – Aidsmap
- Imprisoned over HIV: One man’s story – CNN
- Hoppe T Punishing HIV: how Michigan trial courts frame criminal HIV disclosure cases. 19th International AIDS Conference, abstract WEAD0204, Washington DC, 2012.
- Kelly B et al. When sex is a crime: ending the criminalization of HIV-positive women’s sexuality in the United States by using grass roots advocacy and leadership development to eliminate criminal HIV exposure and transmission laws. 19th International AIDS Conference, abstract WEAD0203, Washington DC, 2012.
- Bernard EJ, Nyambe M Criminal prosecutions for HIV non-disclosure, exposure and transmission: overview and updated global ranking. 19th International AIDS Conference, abstract WEAD0201, Washington DC, 2012.