POZ Community Forums
Main Forums => Living With HIV => Topic started by: emeraldize on June 14, 2006, 11:48:09 pm
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Emerald,
Here in NSW there are two specific laws dealing with this issue. One is under the Public Health Act 1991 which allows the Department of Health apply to a court for an order to restrain someone who is knowingly infecting others with a notifiable disease. People under these orders can be detained "at Her Majesty's pleasure", which mean indefinitely.
The NSW Crimes Act 1900 makes deliberately infecting another person with HIV an offence called causing "grievous bodily disease." The penalty is a lengthy prison term. Several people have been prosecuted and sent to gaol for this particular offence. All heterosexual men, if memory serves.
For what it's worth, I agree with the legal provisions of the Public Health Act 1991 but I have concerns about prosecuting HIV positive people under the Crimes Act in this regard.
MtD
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Matty/Emerald,
There is actually another law under the Public Health Act in NSW:
The Public Health Act says that if you have a sexually transmissible medical condition you must not have sexual intercourse with anyone unless you have disclosed to that person the fact you have that condition and the other person voluntarily agrees to accept the risk of transmission. The maximum penalty for breaking this law is a fine of $5,500.
This law does not provide any defence of using a condom or taking any other precautions to prevent transmission. In other words, you commit this offence if you have HIV or any other sexually transmissible infection (STI) and fail to disclose that to your sex partner, even if you use condoms for sex.
This law defines sexual intercourse as meaning the introduction into the vagina, anus or mouth of a person of any part of the penis of another person, or cunnilingus. In other words, this law requires disclosure about HIV or STIs for oral, anal and vaginal sex.
My concerns with making disclosure a law is firstly, that it discourages people from testing for HIV or any ohter STD. If you don't know then you don't have to disclose. Secondly, I think it can lead to a fall sense of security - if the other person doesn't disclose anything then they must be free from HIV or other STD's and it's OK to have unsafe sex. And, thirdly given that sex is usually carried out in private between two people how do you prove or disprove that the person has disclosed?
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Little Steve is correct. I had forgotten about the disclosure provisions of the Public Health Act 1991. There is a gaol term (12 months I think) in addition to the $5000 fine.
MtD
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I agree with Steve about the potential dangers of criminalizing non-disclosure.
Here's a longer Canadian article that might help you with your decision.
The Cuerrier Decision: Public Health and the Criminalization of HIV Serostatus Non-Disclosure (http://www.utmj.org/issues/76.3/pdf/NVHIV76-3.pdf)
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emeraldize,
this has been discussed very much here...i did try to find a link to the old forums but couldn't do so..
We all agree that people who purposely and knowingly infect others is wrong.
But the big issue is, where do you draw the line.
Informed consent like some states? Well, people have gone to prison because they didn't prove they informed their partners.
It is a very bad thing for hiv pos people to have laws like this on the books.
If i go out and fuck someone tonight, wearing a condom but not telling them, should I be thrown in jail?
If I do tell them and they agree to have sex... but later get mad at me for any reason... they can make this claim against me which is virtually indefensible.
If you were an angry ex... for whatever reason... you could make me go to prison by saying I didn't tell you that I was hiv poz.
that's whats wrong with this.
too many people get abused by it.
There are already laws in every state to cover intentional infections I think.
A rapist is much different than a lover... but in the eyes of the law... when that relationship goes bad... the hiv poz person is evil.
I am shocked and frightened you would even suggest a course of action. Hiv, in terms of legal law is no different than syphhiillus.
but people dont get prosecuted for spreading that or any other disease.
Now, I do agree, those who wantonly go out trying to infect people should be punished... but laws like that leave no room AT ALL for the innocent who have a bitter or angry ex-boyfriend.
In the eyes of the law, they are just as guilty.
Perhaps you should first petition for the lot of us to be quarranteened and shipped of to an inland somewhere.
I am just ill reading your suggestion.
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In this instance, I concur wholeheartedly with Bailey. Anyone with hurt feelings, or a streak of vicious can make an allegation, and completely ruin another person's life.
I have an ex-boyfriend who would be a prime candidate for just such an allegation.
About a year ago, one of our brethren from Germany met a man at the steam room, and they essentially had a mutual masturbation situation. The other guy asked, and was told that our member was HIV+. He freaked out, started hurling epithets, and went on his screaming way to the emergency room to get PEP, because of his irrational fear, even though this was not a risky encounter.
There are more stories than you can shake a stick at, but these laws make us the enemy by default.
Perhaps your time could be better spent on educating, and/or advocating for our rights as citizens.
I am quite aware of the fact that there are people who do present these behaviors, but they are few, and far between. The overall majority are thoughtful people, just trying to survive in this fear mongering atmosphere.
>stepping down off my soapbox now<
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The problem with these laws is the lack of balance between punishing those that knowingly and willingly infect others and protecting those that are just going about their lives in the best way they can.
It's so easy for someone to cry 'rape' - much like some women do when a man becomes famous (for a heterosexual example) - when pissed off, and HIV status provides them with a method of 'payback.'
The law as it stands is insufficient, but maybe it would be a better idea to approach your local ACLU chapter and discuss this with them.
If the law could be balanced, then it would be much better for all.
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I think there are several issues running with this type of "law" 1...enforcement...who/how is this to be enforced?? as already stated it is usually someone who has been "wronged" but you don't have any way to defend against this type of accusation unless you have some sort of notarized document..( very unlikely )..therefore you are presumed guilty just by accusation...a very poor one sided situation..... 2. this law specifies one type of communicable disease..there are many deadly communicable diseases...some of them inherited, some sexually transmitted and some transmitted by relatively little understood means..... why home in on just "sexually transmitted disease" ??? aren't hemophilia , Crones disease ,severe diabetes, various cancers , various syndromes , etc deadly diseases????? Many, if not all ,are preventable with testing or just from family/group knowledge. 3. Punishment/legal responsibility are very different concepts in different parts of the world...( people travel relatively easily around the world to/from almost any place )... This type of legislation seems to be most prevalent in "advanced" or Western societies. In some parts of the world..there is a very open attitude about sex/sex acts...you pretty much takes your chances and make yourself aware of the possibilities of the outcome....in other places sex is a regulated industry with fairly stringent requirements for sex workers but not for any body else...then there are the non-believers that think sex in any context is none of anybodies business but yours...
So I am not for open ended free for all take your chances random sex .but making the accusation become the determination of guilt is just not good law.....the ACLU will have a real ball with these cases....
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I have hiv, so I have to go with Bailey. If was negative I would probably agree with a law.
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PLEASE, Emerald,
This discussion cannot go on without knowing if you live in the United States, or why you feel that this fight is worth the effort, or even if this is possibly unconstitutional....
The complexities of these kinds of laws leave no room whatsoever for those who have been careful, break a condom and then suffer the wrath of the partner, or the State.
I cannot believe that anyone in this time and place would advocate for "criminalization of HIV infection". If you haven't been under a rock for the last 25 years, you would already know that this pandemic is already out of control, and due largely to people "sleepwalking" through the world. The United States is so totally in denial about HIV and the mess that is coming on the horizon now that the infections are going full steam in the Heterosexual community, and there is no stopping it in sight. Getting people of any sexual persuasion to take care of their own sexual health is already an impossibility and to add unenforceable laws to the mix is tantamount to letting this pandemic spread like wildfire.
Also, these laws are truly not equitable in nature, as there are always two taking part in any sexual situation. How does one prosecute the HIV+ without prosecuting the receiver of the "Gift"??????
Of course, incidents of rape are not part of this discussion, and those can be prosecuted under other laws already on the books.
In Love and Curiosity.
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I forgot to mention , I read the Canadian article about the specific cases that were initially found "not guilty" then overturned because the interpretation was made that this was a "criminal" act..In fact no definition of this or any other "sex" act had actually been defined as "criminal" by the Parliament. This was a ( my opinion) case of the Courts making decisions that were out of the bounds of their rightful function. US Courts do this all the time and are frequently challenged...The state courts are especially guilty of this and many " US Supreme court cases revolve around this problem. Encouraging Sates to enact these laws only exacerbates the problem... I know of the specific cases here in Texas where "sodomy" laws were challenged and ruled "unconstitutional" in spite of being on the books for many years in Texas........lets not aggravate this type of long term "legal" issue by encouraging states to act on their own......
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I waited, wisely it seems, for people to state my arguments against the draconian and useless legislature against HIV infection.
Dingo nailed it with his observation of the "he said/s/he said" scenario.
Pozniceguy followed with the notion that the accusation ITSELF carries such community stigma that a person would likely not recover from it. Ruining people in a witch hunt for consensual sexual activity based on the word of one of the partners is wrong, period.
And then Moffie followed beautifully with his notion that these laws erode the already slim ideas of personal responsibility that NEED to be instilled in people who are sexually active.
And there is, in many states, no distinction between unprotected sex and protected sex (again, how do you prove protection?), as well as between high risk activities, low risk activities, et al. The right judge and prosecutor can get you on trial for kissing, according to the CDC's outdated and inaccurate information.
No, these laws are ALREADY putting people in prison for wearing condoms for sex, or for performing fellatio here in the USA.
I have not budged one iota from my stance a few months ago. Not one iota.
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The reason I want to know is I have considered (eventually) encouraging those states in which there is not legislation making it a felony to knowingly infect someone to ehnact legislation. I am very interested in understanding why people believe laws should not exist or, in what situations laws can or should exist. To understand both sides thoroughly will help me to determine whether or not I will move forward.
You need not worry about those states that don't have HIV infection laws on the books. There are plenty of other statutes that can be used to prosecute someone for intentionally infectining another person with HIV.
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Perhaps you should first petition for the lot of us to be quarranteened and shipped of to an inland somewhere.
That would be the next step the zealots would love to take!
Bailey has hit the nail on the head here with all the other issues he brought up. I don't need to add any more then what he has already stated.
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To everyone who responded, I extend my thanks. I sought your viewpoints not to agitate or bring assumptions forth as to my reason for seeking your input. You don't know anything about me except that I respect peers enough to seek their input. There are states without laws to protect someone against intentional, criminal infection. Cliff, I appreciate your input and will look further to understand options available when intentional infection is the case. DingoBoi, while I appreciate you telling me this is a previously-much-discussed topic, I found this site quite recently and have no knowledge of such discussions. I simply wanted to discuss this with people who, like me, are positive and have thought about the issue. If any of you want to send a private message with additional thoughts, no matter what your position on the issue, I would appreciate it. I don't want to take up valuable space with an antique topic. My sincere thanks for the links and helpful input.
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i don't mean to discourage further discussion on this at all. That wasn't my intent. I mentioned it hoping to eventually find a link to a prior discussion, which i was unable to locate. :-\
I do think there are serious issues with any laws specific to hiv... why no clamydhia or syphillis? Why not herpes?
These original laws were mostly founded on the precept that hiv is a terminal disease. This was mostly before the advent of haart.
Then it might have been a good idea, but now....
hell.. in West virginia, it is illegal for an hiv person to have sex with their spouse, with informed consent, if they are hiv positive, even with a condom. (hope that fact is right.. maybe got the state wrong)
I have slept with a couple people after testing positive, without protection. does that make me an evil person?
It wasn't my intention to infect them at all, but with disclosure comes a price. Not everyone is ready to disclose.
I'll admit what I did was wrong, but I shouldn't be sent to jail for it.
Each person is responsible for their own sexual health. If you are willing to have unprotected sex, you share EQUALLY in the blame if you become infected, whether or not your partner knew.
and that is the crux of the issue. It puts all guilt on the hiv positive person and NONE on the negative person (who should have known to use a condom)
It takes two to tango. These laws put all the blame on the positive person (who likely is going through some severe emotional issues) but absolves completely the negative person who WILLINGLY had unprotected sex.
and that really only promotes anonymous testing and non-disclosure, because if nobody knows except you... you won't be sent to jail.
it puts a much higher stigma on the issue.... which is that if you have protected sex, there is no risk. (yes, i acknowledge condoms can break, but I don't think anybody ever has been infected by a broken condom... when noticed immediately, which it should be unless you are 'under the influence'
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If one can make the language of the law precise enough such that there would be no room for misusing it other than for individuals who purposely engage in activities with the intent of infecting others, then that might be acceptable. The problem is, how do you prove or disprove "intent"? I believe there are even some states where "intent to inflict harm" is not even included in the statutes that criminalize HIV non-disclosure (irrespective of transmission); those are very dangerous, in my opinion.
Here's another article from the Seattle Weekly (http://www.seattleweekly.com/generic/show_print.php?id=58875&page=&issue=0448&printcde=MzQ1MTU1MTQxMQ==&refpage=L25ld3MvMDQ0OC8wNDEyMDFfbmV3c19oaXYucGhw). I don't agree with everything that was discussed, but it attempted to go in-depth into the issues.
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To everyone who responded, I extend my thanks. I sought your viewpoints not to agitate or bring assumptions forth as to my reason for seeking your input. You don't know anything about me except that I respect peers enough to seek their input. There are states without laws to protect someone against intentional, criminal infection. Cliff, I appreciate your input and will look further to understand options available when intentional infection is the case. DingoBoi, while I appreciate you telling me this is a previously-much-discussed topic, I found this site quite recently and have no knowledge of such discussions. I simply wanted to discuss this with people who, like me, are positive and have thought about the issue. If any of you want to send a private message with additional thoughts, no matter what your position on the issue, I would appreciate it. I don't want to take up valuable space with an antique topic. My sincere thanks for the links and helpful input.
Jeez Emerald, there's no need to get all upset. This subject has been discussed in our forums many times before. Some of the older members may well remember the infamous Disclosure thread of last April. Now THAT was a event, let me tell you.
I personally think we should talk about this sort of stuff anew every so often. It helps bring new members into the discourse, and it's and important subject. Nevertheless, when you raise an issue like HIV and the law in a forum like this and then adopt a pro-criminalise position (such as you have) then you've gotta expect the debate to be a little bit robust.
However, I think this thread has been pretty mild. When I encountered your initial post, this is how it read to me:
That all filthy disease spreading queers, druggies and slutty-ho's should be slung in prison. Discuss.
Seriously, that's how it sounded to me. I would bet I'm not the only one who feels this way. But I figured that there was probably more to your approach than that, your lack of sensitivity notwithstanding. Hence I answered your questions with some information about how the law works in New South Wales and offered my opinion. Considering the style of some of the contributors here, I think people have been pretty evenhanded
So on balance, I wouldn't be too precious about this, if I were you. HIV and the criminal law is a real hornet's nest. Especially at AIDSMEDS.
Regards,
MtD
/edited to be more inclusive/
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Considering the style of some of the contributors here, I think people have been pretty evenhanded
Bailey (who appreciates any 'extra' hands)
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Thanks again for the speedy and reassuring replies. I'm not upset. In fact, I'm thankful for the feedback. While I tried to word my initial inquiry sincerely and respectfully, and attempted to do the same this evening--it's the risk of being misunderstood that one takes using e-mail. I meant it when I wrote that I truly don't want to bring up a topic that's tired and worn. However, I will tell you that despite any misunderstandings that arose during this thread (which is part of the lay of the e-land sans inflection and facial affect) I learned a great deal. I'm not on the outside looking judgmentally in, I'm on the inside. If you knew me and knew the motivating factors, you would know that I wish no harm, no quarantine, no ill will toward anyone. It is my hope that this forum will continue to be a place where I can learn from others' experiences and perhaps even teach by sharing my own. Totally unrelated...I love the talking parrots. Good night and good weekends to all.