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Author Topic: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY  (Read 3959 times)

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Offline zephyr

  • Member
  • Posts: 459
    • Zephyr L.T.N.P. Foundation, Inc.
CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« on: July 05, 2006, 07:32:41 PM »
Hi Folks...

Received my Kaiser Network Alert today, and want to report that on Monday, July 3, the Califormia Supreme Court ruled that "Withholding Sexual History Can Be Grounds for Lawsuits Involving HIV Transmission"

 Quote: "The California Supreme Court on Monday ruled 4-3 that an HIV-positive woman can sue the sexual partner from whom she contracted the virus, even if the man did not know he was HIV-positive at the time, the New York Times reports (Liptak, New York Times, 7/4).  The court also ruled that a portion of the man's sexual history must be disclosed in the case (Cooper, Sacramento Bee, 7/4). A California law (SB 705) makes it a felony, punishable by up to eight years in prison, to knowingly expose or infect an unaware person to HIV.  The law also allows a person's HIV status to be disclosed if the person is the subject of a criminal investigation for committing this crime (Kaiser Daily HIV/AIDS Report, 9/10/03)."

Other newspapers covering this story were: Contra Costa Times, 7/4, Los Angeles Times, 7/5), the San Francisco Chronicle, 7/4, and the San Francisco Examiner, 7/3.

To request the Kaiser Daily HIV/AIDS Report, visit www.kaisernetwork.org/email to subscribe.

Thought you'd like to know.

Zephyr
"It is character that communicates most eloquently."

Offline jkinatl2

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  • Doo. Dah. Dipp-ity.
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #1 on: July 05, 2006, 07:36:32 PM »
Yeah, I wish I didn't see THAT coming.

Man, what will it take before we grow a new batch of activists? Forced tattoing? Searchable database? Quarantine?

"Many people, especially in the gay community, turn to oral sex as a safer alternative in the age of AIDS. And with HIV rates rising, people need to remember that oral sex is safer sex. It's a reasonable alternative."

-Kimberly Page-Shafer, PhD, MPH

Welcome Thread

Offline Dachshund

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #2 on: July 05, 2006, 07:43:49 PM »

......so what they are saying is....if you are gay, black, brown, poor, women, high school dropout, convicted felon, ex drug user, alcoholic, not knowing is still knowing?

Jonathan I am afraid it just might be too late.

H :'(

Offline The Canuck

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #3 on: July 05, 2006, 07:45:05 PM »
'' The California Supreme Court on Monday ruled 4-3 that an HIV-positive woman can sue the sexual partner from whom she contracted the virus, even if the man did not know he was HIV-positive at the time,...''

How can it be a felony if the person didn't know he was HIV+ ? There are at least 4 judges lacking judgement to say the least... ???

The Canuck
(Who thinks these 4 judges are probably lobotomised)

Offline Lisa

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    • http://www.myspace.com/lisanowak58
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #4 on: July 05, 2006, 07:50:11 PM »
So.........every time you go on a date with someone, you must first get an HIV testing result notarized aforehand?
This is a VERY dangerous precedent.

How might one go about proving that?  ........   never mind

                    sigh :'( >:(
No Fear  No Shame  No Stigma
Happiness is not getting what you want, but wanting what you have.

Offline Steven

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    • A Place To Start
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #5 on: July 06, 2006, 07:57:17 AM »

This is a VERY dangerous precedent.


That is what I thought when I heard the news, such a far reaching ruling that I fear is only the tip of the iceburg for an administration that does not want to recognize this for what it truly is.  Is it really part of their "abstinence only" policy?

I posted a link on this the other day in a thread about the "wannabee" since both stories seemed to come out near the same time, makes you wonder if "their" next step is a quarantine of infected individuals. :(

Offline Andy Velez

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #6 on: July 06, 2006, 09:02:01 AM »
I can't help wondering if this will be one of those cases that goes to the Supreme Court. Once upon a time that would have been a good thing. But these days.....

Is this any way to fight an epidemic??????
Andy Velez

Offline Moffie65

  • Member
  • Posts: 1,755
  • Living POZ since 1983
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #7 on: July 06, 2006, 09:03:16 AM »
This just makes me want to puke.  Sorry Zephyr, not your fault, but you did bring it here for all to see.

In Shock and Awe
(at the stupidity of the American Populace for putting up with this type of insanity)
The Bible contains 6 admonishments to homosexuals,
and 362 to heterosexuals.
This doesn't mean that God doesn't love heterosexuals,
It's just that they need more supervision.
Lynn Lavne

Offline HIVworker

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  • Posts: 918
  • HIV researcher
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #8 on: July 06, 2006, 09:13:34 AM »
Great, I think it should also be law to tell someone if you are a dickhead prior to dating them. If you find out they are a dickhead later in life, whether they admit to it or not, they should be stricken from the electoral register.

R
NB. Any advice about HIV is given in addition to your own medical advice and not intended to replace it. You should never make clinical decisions based on what anyone says on the internet but rather check with your ID doctor first. Discussions from the internet are just that - Discussions. They may give you food for thought, but they should not direct you to do anything but fuel discussion.

Offline Jeff64

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #9 on: July 06, 2006, 09:18:16 AM »
HIVworker, I heartily agree...I would rather have a nice poz guy over a neg dickhead any day!

Offline Cliff

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #10 on: July 06, 2006, 09:41:44 AM »
We knew this was coming.  One argument made against HIV tranmission laws, was that it creates an incentive for people to avoid knowing their status.  The judicial system is now trying to remove that incentive.

Quote
The Court's majority said it was necessary and advisable to expand potential liability to those actors who have "constructive knowledge" (not just that they knew but that they had reason to know) of their illness because to require only "actual knowledge" would "have perverse effects on the spread of the virus. If only those who have been tested are subject to suit, there may be 'an incentive for some persons to avoid diagnoses and treatment in order to avoid knowledge of their own infection.'"
« Last Edit: July 06, 2006, 10:24:07 AM by Cliff »

Offline CowboyPOZ

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #11 on: July 06, 2006, 11:04:09 AM »

What's next? Are they going to force me to move out and never see my partner again because he is negative? It's just a matter of time before they make a database for our employers to check us out then find a reason to fire us.

ARGH! THIS MAKES ME MAD!

Redneck Okie Cowboy Guy

Offline Moffie65

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  • Living POZ since 1983
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #12 on: July 06, 2006, 11:10:57 AM »
From Cliff,
Quote
"Not everything that is faced can be changed. But nothing can be changed until it is faced." James Baldwin

Thank you for this Cliff.

This quote is so terribly apropos at this time, and for this issue.  How can anyone subvert the status of their own health to another, except for rape, this law smashes to the core of Capitalism, Free Thought, Democracy and Self Sufficiency.  This must be stopped, and women once again, are probably the only ones that can do it.  

I understand the need for some restriction, due to sexual assult; however, how the hell is any policing of this law going to take place when the flow of grass from Mexico is at an all time high.  I think I'll take another puff.

In Total Wonder.
The Bible contains 6 admonishments to homosexuals,
and 362 to heterosexuals.
This doesn't mean that God doesn't love heterosexuals,
It's just that they need more supervision.
Lynn Lavne

Offline Jake72

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #13 on: July 06, 2006, 01:31:23 PM »
I find this piece of news (from 2004) to be even more frightening:

"One 23-year-old HIV-positive man in Iowa City recently received a 25-year sentence for a few days of unprotected sex with a woman who has since tested negative. Washington law, too, prohibits "exposure," without regard to transmission. That makes it different from other crimes, where the outcome affects the penalty: A drunk driver who hits a pedestrian is subject to harsher punishment than someone who's just as dangerously intoxicated but makes it home without incident."
( http://www.seattleweekly.com/news/0448/041201_news_hiv.php )

So even if someone continues to  test negative, he/she can still accuse us of "exposure."  Let's think about this.  Imagine a serodiscordant relationship (where all possible precautions have been taken and the neg person was duly informed) that ends on bad terms.  What would stop the negative person from going to the cops and simply saying "I'm negative, but this guy/woman had sex with me and exposed me to HIV. Lock him/her up!"? 

I could also imagine situations of cruel blackmail.  The neg partner could say "Give me all your money/possessions or I'm going to the cops to say that you exposed me to HIV." 

And who knows?  Maybe it's a matter of time before even a poz person can accuse another poz person of exposure to his/her strain. 


Offline Alain

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  • Posts: 680
  • I am.
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #14 on: July 06, 2006, 03:13:17 PM »
.
« Last Edit: November 03, 2006, 08:35:01 PM by cowandalehouse »

Offline David_CA

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #15 on: July 06, 2006, 04:55:24 PM »
It reminds me of people suing fast food restaurants over becoming obese or people with lung cancer suing cigarette manufacturers.  We ALL know certain things are either not good or bad for us, but we continue with them anyway.  In moderation, it's probably ok.  Where is the personal responsibility here? It seems nobody is responsible for anything that happens to them, even if it's their fault.  Where does it stop?

David

Black Friday 03-03-2006
03-23-06 CD4 359 @27.4% VL 75,938
06-01-06 CD4 462 @24.3% VL > 100,000
08-15-06 CD4 388 @22.8% VL >  "
10-21-06 CD4 285 @21.9% VL >  "
  Atripla started 12-01-2006
01-08-07 CD4 429 @26.8% VL 1872!
05-08-07 CD4 478 @28.1% VL 740
08-03-07 CD4 509 @31.8% VL 370
11-06-07 CD4 570 @30.0% VL 140
02-21-08 CD4 648 @32.4% VL 600
05-19-08 CD4 695 @33.1% VL < 48 undetectable!
08-21-08 CD4 725 @34.5%
11-11-08 CD4 672 @39.5%
02-11-09 CD4 773 @36.8%
05-11-09 CD4 615 @36.2%
08-19-09 CD4 770 @38.5%
11-19-09 CD4 944 @33.7%
02-17-10 CD4 678 @39.9%  
06-03-10 CD4 768 @34.9%
09-21-10 CD4 685 @40.3%
01-10-11 CD4 908 @36.3%
05-23-11 CD4 846 @36.8% VL 80
02-13-12 CD4 911 @41.4% VL<20
You must be the change you want to see in the world.  Mahatma Gandhi

Offline jack

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  • fomerly the loser known as Jake
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #16 on: July 06, 2006, 05:43:18 PM »
no one is getting quarantined. Hell,we cant even quarantine terrorists without everyone having a hissy fit.  We live in a society that is dominated by lawyers. They profit from laws like this. If you are against shit like this,you should favor limits on damages or vote against anyone taking dough from Lawyers and their ilk.
I wonder if they are gonna grandfather this law in. The lawyers would love that. 30% of all damages.

Offline zephyr

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    • Zephyr L.T.N.P. Foundation, Inc.
Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #17 on: July 06, 2006, 07:30:51 PM »
Yep, it's a bad call, I'll say.

Still digesting this, myself, and knew I had to post this ruling for all to see.

As evidenced by your many posts, our feelings run strong on this issue.

I wonder how the judges would have ruled had they a family member infected with HIV? I'll bet not a single one of them has ever even held a discussion with an HIV+ person, ever.

Just the messenger, guys.

Love,

Zephyr
"It is character that communicates most eloquently."

Offline manhattanman

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #18 on: July 06, 2006, 08:43:42 PM »
The account of this I read in the NY Times made reference to wilful ignorance. I believe if my memeory is correct that one portion of the court's opinion held that if someone had reason to beleive they might be positive by virtue of their past sexual history that they would have a duty to get tested and not to do so wold be tantamount to reckless endangerment (this type of law not my forte).

That being said I still think the court's opinion is wrong because that standard is still quite subjective (ie "reason to beleive based on sexual history" standard) and given our jury system I can't imagine that there could ever be a properly informed jury from the current selection methods.

Even with disclosure it is scary to think of how do you corroborate that disclosure ? An affidavit duly notarized ? Otherwise you have all the scary he-said/she-said or he-said/he-said scenarios outline above.

Very scary precedent.

Offline Cliff

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #19 on: July 07, 2006, 02:53:52 AM »
Quote
That being said I still think the court's opinion is wrong because that standard is still quite subjective
Agreed.  Does having unprotected sex with one person mean you should have known you were at risk or is it 10?  Is it just unprotected sex with men or is it with women as well?  What about having had sex under the influence, does that count?  What about just participating in oral sex? 

The real danger is that when the decision goes to a jury, they will almost always seek punishment for HIV transmission.  Juries need to find someone responsible and when faced with such biased information (sexual & drug use history) it becomes very easy to place the blame at the defendant's feet.

Offline manhattanman

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Re: CALIFORNIA SUPREME COURT RULING RE: TRANSMISSION = FELONY
« Reply #20 on: July 07, 2006, 07:47:24 AM »
Another portion of the court's ruling that is quite troublesome is allowing the "defnedant's" sexual history in as evidence on this point. (remember in days gone by in rape cases where often the woman was put on trial allowing evidence as to past sexual activity i.e. "she was asking for it").

However, the "defendant" then testifies that he/she has had "X" number of sexual encounters in the past "x" years. defendat then further testifies that in all cases he/she asked his/her partner whether they were negative or positve and all the partners told "defendant" they were negative, then what ? Subpoena all the past sexual partners to get their testimony as to the accuracy of "defendat's" testimony and/or their current status and status at the time of the encounter ?  A cumbersome process at best.
Or the prosecutore then charges one of those past encounters ?

Equally disturbing (if I rememebr correctly) is that California, up until now, had fairly detailed statutes regarding various sexual acts and disclosure requiremts (almost a "how to guide to avoid legal liability for the sexually active HIV positive individual" which is quite good). Will this now change ?

Now is where I will incur the wrath of some forum memebers. This type of thing would be less combustible if HIV were seen as a "manageable condition" and not a "terminal" one provided you follow current medical guidelines..
Sorry to all you activists, but I have known too many individuals (long termers) thriving on HAART and yes they are the buff guys in the ads snow boarding, scuba diving, skiing etc and not young either. But they follow their DR's orders and question/challenge their
 DR's when necessary.
Hate to say it but the public message should be to avoid getting it but if you do you will live your normal productive life provided you follow current medical guidelines. If the genral public viewed HIV this way we may very well not have cases like this.

 


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