But He Looked So Healthy! Australian Man Charged With "Knowingly Spreading HIV"

[Boze]

Thank you for clarifying that he did not in fact mean to transmit HIV, you're absolutely right. It was reckless.

A few individuals have actually  were prosecuted for willful transmission, found while researching the topic: http://www.avert.org/criminal-transmission.htm

Dr Richard J. Schmidt, 19985,6: Richard Schmidt was a doctor from Louisiana, USA, who was accused of infecting his lover, a nurse called Janice Trahan, by injecting her with HIV infected blood. Trahan alleged that Schmidt had injected her with the blood of one of his positive patients in an act of vengeance after she tried to end their relationship. DNA samples of the virus in Trahan's blood and that of the positive patient in question were found to be very similar, but Schmidt's defence team insisted that 'very similar' was not scientifically accurate enough. HIV rapidly mutates and changes its DNA structure once it enters another person's body meaning comparisons can be difficult. However, using a new technique called ' phylogenetics' (or 'evolutionary analysis'), scientists were able to determine that Schmidt's patient was extremely likely to have been the source of the virus found in Trahan. Schmidt was found guilty and sentenced to 50 years.

Brian Stewart, December 19987: Stewart was a medical technician from Illinois who was sentenced to life in prison after deliberately injecting his son with HIV infected blood, allegedly in an effort to kill him and avoid paying child support. He was found guilty after all other suggested sources for the boy's infection were ruled out. On one occasion Stewart allegedly told the boy's mother not to bother seeking child support because the child would not live beyond the age of five. On another, he told colleagues that he had "the power to destroy the world? I would inject them with something and they would never know what hit them."

[Grasshopper]

Isn't  "deliberately injecting someone (not with an erect penis!  ) with HIV infected blood" a whole different topic ?

[komnaes]

I've made it very clear that it's reckless transmission that I feel can not be left unaccounted. All the stupid laws that result in someone gets 35yrs for spitting are unequivocally wrong... I've come to accept the position held by many here that they share some responsibility since they agreed to have unprotected sex which carries a certain risk of acquiring STD.

What I find most perplexing is that you and (allegedly) most that share your views seem to use the word "responsibility" so interchangeably. What is missing the whole time is an adjective before it. Are you talking about "moral" responsibility, or even "social" responsibility? However the question all along is should there be a "criminal" responsibility, which is something we've been objecting to from the start.

So what "responsibility" you think those who have consented to unprotected sex and get infected should "share"?

Assuming your answer is that they, the infected party, should not "share" a criminal responsibility, what makes their "responsibility" lesser (or that the infected party greater) that attracting criminal responsibility to this consensual act to another party is justified/justifiable?

[komnaes]

For the sake of clarity, Mr Zaburoni is not charged with intentionally using HIV as a weapon but causing serious injury (see original post). The press nearly always make it a matter of intention (ie adding "knowingly"). Even the BBC do it, tho, luckily, tis easy to put them right on this important matter of fact with a few emails. It is important because it ascribe malice and forethought as a state of mind, when more likely, on both parties, lust and stardust were more to the forebrain on the night in question.

That was clarified at least 3 pages ago.. but of course always worth mentioning..

Actually the key (legal) word here is "recklessly", which of cos is not mentioned once in any media reports. I don't have a comprehensive list of cases but I think I can safely say that, at most, like almost all similar cases that involved consensual sex, this man is charged under "recklessly" causing GBH. There is another offense in Australia on inflicting GBH with "intent".

Just wanna clarify..

But then again, what else is to expect from the media when it comes to a story about a handsome "monster" that involves lots of sex...

[newt]

Well as it happens they have added one charge with intent (a standard presecutor's ploy)

[Boze]

Isn't  "deliberately injecting someone (not with an erect penis!  ) with HIV infected blood" a whole different topic ?

Yes, of course. I think this highlights the problem that exists - how do you know if someone meant to infect another person during a sex act (ie sticking someone with a penis and not a needle) or merely didn't want to bother with condoms?
One can say that the burden is on the accuser to prove intent to transmit (and not recklessness). However, I think  that given the disparity of risk between parties, that failure to show any consideration can be construed as bordering between reckless and willfull. For example - someone who is on HAART can fully claim to not have intent if the sex act resulted in transmission, thus invalidating the charges (as it happened during a case in Switzerland).

What I find most perplexing is that you and (allegedly) most that share your views seem to use the word "responsibility" so interchangeably. What is missing the whole time is an adjective before it. Are you talking about "moral" responsibility, or even "social" responsibility? However the question all along is should there be a "criminal" responsibility, which is something we've been objecting to from the start.

So what "responsibility" you think those who have consented to unprotected sex and get infected should "share"?

Assuming your answer is that they, the infected party, should not "share" a criminal responsibility, what makes their "responsibility" lesser (or that the infected party greater) that attracting criminal responsibility to this consensual act to another party is justified/justifiable?

Sure, thank you for bringing it up. It is something we should have addressed long ago as it highlights where our difference of opinion lies.

I think the responsibility is first of all moral. A person who is HIV+ has a moral responsibility to avoid transmitting the virus to others. That means having protected sex if they have detectable VL or disclosing their status to the partner so he can decide whether to engage in unprotected sex.

The part where we disagree is that I think it's reasonable for the state to make the transmitor accountable if he chooses to put personal gratification above health of others. I am yet to see one cogent explanation why in this case the Australian acrobat should not be held accountable.

--

What responsibility do the aggrieved party share? - Living with the virus for the rest of their lives.

[komnaes]

To jump from a moral responsibility to legal/criminal responsibility in a consensual interaction requires additional justification, especially when the subsequently "injured" party was in full capacity and power to prevent it from happening to him/herself. That additional justification was and still is never present; and as repeated here and previous threads numerous time the "social justification" (reducing the number of infection, e.g.) has proved to be false; and it serves no purpose at all except to perpetuate discrimination, give the general public a false sense of security and promote a needlessly vindictive false social justice.

What you have never addressed though is - if you think the criminal responsibility, which comes from a moral responsibility - is greater on the part of the HIV+ party then the HIV- party, why the latter, who has and should have full knowledge of the risk of acquiring any number of STDs and chosen to ignore this risk for his/her "sexual glorification", should not share the "criminal" responsibility?

And by the way, you still have not ridden of that notice of victimhood really - otherwise why would you think that being HIV+ is already the consequence of "sharing" responsibility as compare to others being put behind bars. I am HIV+ and I don't see myself as "sharing" a moral responsibility with the person that infected me - whether he knew he was HIV+ or not when he fucked me without a condom. I asked for it and I should have stopped me. If there's any "responsibility" on my part, it's just a responsibility to myself and my health.

[Boze]

First I'd like to thank you for raising the level of the debate to a higher standard on numerous levels.

To jump from a moral responsibility to legal/criminal responsibility in a consensual interaction requires additional justification, especially when the subsequently "injured" party was in full capacity and power to prevent it from happening to him/herself. That additional justification was and still is never present; and as repeated here and previous threads numerous time the "social justification" (reducing the number of infection, e.g.) has proved to be false; and it serves no purpose at all except to perpetuate discrimination, give the general public a false sense of security and promote a needlessly vindictive false social justice.

As I mentioned earlier, to me the analogy is to someone who is deceived by a cheat. The person who agreed to have unprotected sex did so under the impression that his partner was negative. The risk they implicitly agreed to accept was the HIV+ person not being aware of their status and not HIV+ lying  to them.
A large number of crime acts can be prevented if the victim exhibited just a little bit more common sense. Just like we don't say to a cheated grandmother - You did not have to open the door to the nice young man (or invest with Madoff), I feel that placing full blame on the HIV receiver misses the point of who is ultimately morally culpable.
I also appreciate that different encounters imply different risk profiles. Meeting a random dude in the park at night and not getting his name is a world apart from being infected by someone you cohabit with.

I agree that these measures will not stop spread of the disease (ie overall social impact). But we also don't rely on the laws for many different crimes to prevent people from doing them. Being a decent human being and having own moral code is what stops people.  I am not drawing a parallel between the two, only demonstrating that the reason for having a law is not just deterrence, but also attributing "justice". I feel that significantly altering life of a person by infecting them with HIV is an unjust act. 

What you have never addressed though is - if you think the criminal responsibility, which comes from a moral responsibility - is greater on the part of the HIV+ party then the HIV- party, why the latter, who has and should have full knowledge of the risk of acquiring any number of STDs and chosen to ignore this risk for his/her "sexual glorification", should not share the "criminal" responsibility?

Sure. My logic rests on the asymetry of knowledge between the two parties. HIV+ person knows with certainty that there is a significant risk to the HIV- to become infected, while the HIV- person is facing a much smaller hypothetical risk. The ratio can be expressed as the ratio of HIV+ people in the subset of population.
If we use current example - there are 23,000 HIV males in Australia. Assuming half of them are homosexual, that leaves 11,500. There are approximately 4.25mil men aged 20-50. So a random heterosexual man is 11,500/4,250,000 = 0.0027. That is 1:400. Versus 1:1 as known by the HIV+ partner. To me this ratio is a benchmark for how I perceive difference in responsibility. The actual numbers don't have to be precise - I am only illustrating my thought process.

For example in the book Super Freakonomics the authors cite prevalence of HIV in population of indivisuals who frequent Chicago prostitutes. Those who frequent females are about 2-3%, while those who frequent male prostitues have 35%. That explains why female prostitutes do not put a high premium on use of condoms ($2 per act).

This may also explain why some members feel that they took a personal risk and don't blame the person who infected them - because they feel the odds they faced meant they 'should have known better'. But situations are different - others may not feel that way.

FWIW I personally was infected by someone who didn't know their status and had to break the bad news to them.

And by the way, you still have not ridden of that notice of victimhood really - otherwise why would you think that being HIV+ is already the consequence of "sharing" responsibility as compare to others being put behind bars. I am HIV+ and I don't see myself as "sharing" a moral responsibility with the person that infected me - whether he knew he was HIV+ or not when he fucked me without a condom. I asked for it and I should have stopped me. If there's any "responsibility" on my part, it's just a responsibility to myself and my health.

I probably did not make myself clear, or just misspoke. I don't see a moral responsibility in the person who was infected. I see a practical responsibility - he or she will have to live with the virus because they took a certain risk and it misfired.

To me moral responsibility stems from the skewed odds. It's like going to a rigged racetrack and losing. The loser should have known better - and if he didn't play there would be no loss. But the person who took his bet has a different responsibility because he knows the game is rigged.

[Matty the Damned]

First I'd like to thank you for raising the level of the debate to a higher standard on numerous levels.

Heh, because you've been such an edifying influence.

If we use current example - there are 23,000 HIV males in Australia. Assuming half of them are homosexual, that leaves 11,500. There are approximately 4.25mil men aged 20-50. So a random heterosexual man is 11,500/4,250,000 = 0.0027. That is 1:400. Versus 1:1 as known by the HIV+ partner. To me this ratio is a benchmark for how I perceive difference in responsibility. The actual numbers don't have to be precise - I am only illustrating my thought process.

Actually these numbers do have to approach some degree of precision. Do you have a source?

MtD

[Boze]

"Heh, because you've been such an edifying influence. "

My evil plan to offend MtD has worked


Personal remarks aside,

1. Number of HIV men in Australia: 23,133 http://www.avert.org/aids-hiv-australia.htm

2. "In 2005, over half of new HIV infections diagnosed in the US were among gay men, and up to one in five gay men living in cities is thought to be HIV positive."

http://www.scientificblogging.com/news_account/different_hiv_rates_among_homosexuals_and_heterosexuals_ignores_risky_behavior_data

I assumed similar dynamic between Australia and US in this regard. If anything, the cumulative population percentage is probably skewed toward gays because in the early stage of the disease they were a higher % of new infections.

3. Population by Age in Australia: http://www.abs.gov.au/Ausstats/abs@.nsf/mf/3201.0

I am not claiming precision - but the overall ballpark I believe is there.

[Matty the Damned]

"Heh, because you've been such an edifying influence. "

My evil plan to offend MtD has worked


Personal remarks aside,

1. Number of HIV men in Australia: 23,133 http://www.avert.org/aids-hiv-australia.htm

2. "In 2005, over half of new HIV infections diagnosed in the US were among gay men, and up to one in five gay men living in cities is thought to be HIV positive."

http://www.scientificblogging.com/news_account/different_hiv_rates_among_homosexuals_and_heterosexuals_ignores_risky_behavior_data

I assumed similar dynamic between Australia and US in this regard. If anything, the cumulative population percentage is probably skewed toward gays because in the early stage of the disease they were a higher % of new infections.

3. Population by Age in Australia: http://www.abs.gov.au/Ausstats/abs@.nsf/mf/3201.0

I am not claiming precision - but the overall ballpark I believe is there.

So you've actually assayed these numbers, Oh Greater Knower of Things?

MtD

[Boze]

Sorry, what is your point?

I'm just a guy with access to common sense and google.

[Matty the Damned]

Sorry, what is your point?

I'm just a guy with access to common sense and google.

But not necessarily an understanding of statistics?

MtD

[newt]

I am yet to see one cogent explanation why in this case the Australian acrobat should not be held accountable.

Perhaps because fucking without a condom takes two, and no jury in the world of any sense is gonna say a hot night with a travelling acrobat is a low risk to life and limb (even if it's hot, maybe that's part of the attraction).

This raises an important, contingent point (and therefore not very convenient for the law). On discussing this with people, positive and negative, there is in their minds a difference between shagging in a long term relationship and a one night (or maybe three night stand).

The counter to this is of course that people who walk down dark alleys at night shouldn't get assaulted, but that is not a situation involving two consenting adults. Which is the nub of the problem. The law is a blunt tool in this area.

The law in England hinges upon a nuanced discussion of consent and what is a general risk in sex. Eg, pregnancy being considered a well-known general risk and HIV an exceptional one, therefore you consent in all cases to the risk of pregnancy but not HIV unless it is explicitly discussed. From one point of view this is fair, but bugger me, I ain't getting any man pregnant soon.....it's not so simple, esp. with 5-15+ % prevalence in some parts of the population.

[Boze]

But not necessarily an understanding of statistics?

MtD

I would be happy to learn where I made the mistake.

[Ann]

The sea of morality is murky indeed. There are some who would argue that people have a moral responsibility to not have sexual relations outside of marriage. Does that mean sexual relations outside of marriage should be punishable by imprisonment?

As Newt points out, we're talking about two people in a consensual act.

What ever a person tells you before a sex act regarding their hiv status should not be the deciding factor when it comes to negotiating condom use. The person from whom I acquired my virus told me he was hiv negative - he had to test every three months for the work he was doing in Africa with the UN -  but he didn't have the skinny on the window period and honestly thought he was hiv negative. He wasn't. Did he lie? Did he bollocks. He just didn't know.

And it was my responsibility - my responsibility to MYSELF - to insist on a condom. I didn't. At the end of the day, it doesn't matter if he was lying or if he truly didn't know. I shirked my responsibility to myself.



Because of the intense (even if only perceived) stigma surrounding hiv, many people find it exceedingly difficult to disclose.

The majority of people crave love and acceptance and physical intimacy. This impulse, this need, is one of the strongest amongst the human race. This drive - this need - can be so strong that it not only causes people to neglect to protect themselves, but it also causes people to neglect to protect others. Starving people will lie, cheat and steal to obtain food. People who are starving for love will do the same. We all need love. We all need physical intimacy.

I'm not talking horny; I'm not talking sexual gratification. I'm talking about the drive behind it all. As a species, we are driven  to seek out physical intimacy, love, and affection.

To criminalize hiv (whether or not transmission occurs) in a consensual sex act is to criminalize a fundamental part of human nature.

And no, I'm not talking about rapists or the rare person who INTENDS - who WANTS - to infect others with hiv. I'm talking about the majority who are trying to answer a hunger, a thirst that is just as real and just as important as the hunger for food or thirst for water.

How can we - morally - justify criminalising a consensual sex act between two people who agree to answer nature's call together?



edited to fix some punctuation - I really shouldn't read my own posts after the fact.

[BM]

Sure. My logic rests on the asymetry of knowledge between the two parties. HIV+ person knows with certainty that there is a significant risk to the HIV- to become infected, while the HIV- person is facing a much smaller hypothetical risk. The ratio can be expressed as the ratio of HIV+ people in the subset of population.
If we use current example - there are 23,000 HIV males in Australia. Assuming half of them are homosexual, that leaves 11,500. There are approximately 4.25mil men aged 20-50. So a random heterosexual man is 11,500/4,250,000 = 0.0027. That is 1:400. Versus 1:1 as known by the HIV+ partner. To me this ratio is a benchmark for how I perceive difference in responsibility. The actual numbers don't have to be precise - I am only illustrating my thought process.

Unless I've completely misunderstood what you've written, you seem to be conflating two separate issues: risk to neggies versus incidence of HIV in a population. Certainly the two are related, but the risk to a negative person of having unprotected sex with someone whose status is unknown is not the same as the incidence of HIV in the population: with another negative person, the risk is zero whereas it's a lot higher with a positive person. To base sexual health habits on the basis of the above is reckless (and shows an ignorance of conditional probability! :p).

[mecch]

The majority of people crave love and acceptance and physical intimacy. This impulse, this need, is one of the strongest amongst the human race. This drive - this need - can be so strong that it not only causes people to neglect to protect themselves, but it also causes people to neglect to protect others. Starving people will lie, cheat and steal to obtain food. People who are starving for love will do the same. We all need love. We all need physical intimacy.

I'm not talking horny; I'm not talking sexual gratification. I'm talking about the drive behind it all. As a species, we are driven  to seek out physical intimacy, love, and affection.

To criminalize hiv (whether or not transmission occurs) in a consensual sex act is to criminalize a fundamental part of human nature.

And no, I'm not talking about rapists or the rare person who INTENDS - who WANTS - to infect others with hiv. I'm talking about the majority who are trying to answer a hunger, a thirst that is just as real and just as important as the hunger for food or thirst for water.

How can we - morally - justify criminalising a consensual sex act between two people who agree to answer nature's call together?

That really puts the finger in it / oops on it.

I took a nap after I read this post and got to thinking about this group of people:  those who pursue criminal transmission charges, because of lack of disclosure, OR a fear of transmission, OR a real transmission via sex -- are more likely to have ignored or discounted Anns's consideration.  

I'm not saying its researched - just my hunch from unstudied observation on the cases.  

So my theory is this - there are people who do not pursue sex as a way to experience LOVE OR ACCPTANCE OR INTIMACY.   Sex is a game for many people.  Or something to be consumed - a fetish consumption -- not unlike wanting and buying designer clothes.  I see my gay brothers pass up dozens of lover materials, thousands of guys on the chats you would assume would have the "basic instinct" of wanting love and intimacy but instead waste hours in the day, or years of their lives, looking for exactly some perfect guy and sex to be consumed.  
Or sex is hedonistic - mostly about intense pleasures. Or sex is a sport. Or extreme sport. I personally have gotten this feeling any time I've been at a hard sex party - that it has nothing to do with sex as my soul understood it, but rather I was in some weird extreme sport situation, not unlike Outward Bound or Mountain Climbing or Ironman.

I have gotten the distinct vibe over the years in the gay world that HIV is a party bummer - like bad food or running out of booze - something to avoid cause it ruins everyone's good time.  Or if there is HIV around, well at least make lemonade out of these lemons - go whole hog bareback crazy and have the best piggy party you want - no limits - that the buzz word for this kind of mindset.

Or sex is something to take your mind off other things.  Sex as diversion. The french have a good word - entertainment is called "divertissement".  Entertaining one's self with sex to divert ones attention, escape, unwind.

So I don't particularly have a judgement that most of these mindsets are wrong.  Been there and done that, that's for sure!

But I do have this hunch that when HIV rears its unwelcome head - for some people its like a party crasher or a poor host or a debbie downer and people get very MAD and indignant indeed.  How dare illness ruin my party, MY needs, my pleasure, my diversions. etc. etc. etc.

Its like that scene in Monty Python's Meaning of Life.  The vacuous middleclass couples are in their vacuous dinner party and the grim reaper comes cause in fact they are all dead, because of the salmon mouse.  The host is aghast.  The guests are like - "how could you have served us this" , and others like "oh my, this is most inconvenient."

http://vodpod.com/watch/895303-monty-python-the-grim-reaper

"Don't leave him hanging around outside, ask him in!"  (says she, who just wants to be polite and not make a fuss in the face of extreme danger!)

And its also, these days, doubly strong as a metaphor because of course so many HIV negative people see HIV as DEATH and therefore a MOST unwelcome guest at the party.  

Oh heavens, I've been marked my death! Someone must PAY for this, I certainly didn't invite him!

[Boze]

The law in England hinges upon a nuanced discussion of consent and what is a general risk in sex. Eg, pregnancy being considered a well-known general risk and HIV an exceptional one, therefore you consent in all cases to the risk of pregnancy but not HIV unless it is explicitly discussed.

That's exactly my view. That consent can only considered as given only if one is made aware of what the HIV+ individual knows. Level playing field. Otherwise I don't consider the act to have been "consensual".

For what it's worth, I think that HIV+ person has the right to NOT disclose his status if he can demonstrate having taking reasonable precautions to protect the HIV- from getting infected. Such as insisting on a condom or being on HAART and UD.

As Newt points out, we're talking about two people in a consensual act.

I've addressed how I see the issue of consent under the circumstances.

What ever a person tells you before a sex act regarding their hiv status should not be the deciding factor when it comes to negotiating condom use. The person from whom I acquired my virus told me he was hiv negative - he had to test every three months for the work he was doing in Africa with the UN -  but he didn't have the skinny on the window period and honestly thought he was hiv negative. He wasn't. Did he lie? Did he bollocks. He just didn't know.

Your and mine situation (I was also infected by someone not aware of their status) are different from the issue we are discussing here. What about a wife whose husband gets HIV and never bothers to inform her even after he finds out? One can always concoct a scenario where condom use is not the 'reasonable course of action'.

Because of the intense (even if only perceived) stigma surrounding hiv, many people find it exceedingly difficult to disclose.

The majority of people crave love and acceptance and physical intimacy. This impulse, this need, is one of the strongest amongst the human race. This drive - this need - can be so strong that it not only causes people to neglect to protect themselves, but it also causes people to neglect to protect others. Starving people will lie, cheat and steal to obtain food. People who are starving for love will do the same. We all need love. We all need physical intimacy.

I'm not talking horny; I'm not talking sexual gratification. I'm talking about the drive behind it all. As a species, we are driven  to seek out physical intimacy, love, and affection.

To criminalize hiv (whether or not transmission occurs) in a consensual sex act is to criminalize a fundamental part of human nature.

And no, I'm not talking about rapists or the rare person who INTENDS - who WANTS - to infect others with hiv. I'm talking about the majority who are trying to answer a hunger, a thirst that is just as real and just as important as the hunger for food or thirst for water.

How can we - morally - justify criminalising a consensual sex act between two people who agree to answer nature's call together?

I think you raise a valid point. I think there are two ways to answer it:

1) The most important issue I see here is consent. To me (and we may disagree on this), unprotected sex with an HIV+ individual is an instance of sex without consent. Therefore one can apply the logic reserved for other humans interactions where a person takes advantage of another without their consent. I am not saying it's equivalent to rape, but to me there is a parallel - where an act is consummated without one participant consenting to it.  
Therefore the defense of 'call of nature' is as valid here. There are plenty of human wants and needs that one must check because they pose a risk to others. Having unprotected sex with a negative person is one of them.

2) Simply take precautions. This is the easiest and most pragmatic route.: Insist on a condom. If the woman objects, the man can always say that he does not want to have children and doesn't trust the pill. Or start HAART and get UD. I don't see why one has to risk the life of another when such simple steps can be taken whilst keeping his status undisclosed.

Unless I've completely misunderstood what you've written, you seem to be conflating two separate issues: risk to neggies versus incidence of HIV in a population. Certainly the two are related, but the risk to a negative person of having unprotected sex with someone whose status is unknown is not the same as the incidence of HIV in the population: with another negative person, the risk is zero whereas it's a lot higher with a positive person. To base sexual health habits on the basis of the above is reckless (and shows an ignorance of conditional probability! :p).

I'm sorry but I don't think you quite understand conditional probability. You are confusing ex-ante and ex-post probabilities. Let me explain.

The probability that a person is infected during a sex act is equal to: (Probability that partner has HIV) * (Probability of transmission during particular sex act) => (P ^ HIV) * (P ^ transmit)

View of the HIV- person: (1 / 400 ) * (P ^ transmit)  -> if one assumes that partner has the probability of having HIV that's equal to its prevalence in the same group (400 in this example)
View of the HIV+ person 1 * (P ^ transmit) -> HIV+ person knows with a 100% certainty he has HIV

As you see,  (P ^ transmit) appears in both equations and is equal, therefore can be dropped. Hence, the HIV- person perceives her risk to be 1/400 of the risk that the HIV+ person knows she is facing.

[Miss Philicia]

For what it's worth, I think that HIV+ person has the right to NOT disclose his status if he can demonstrate having taking reasonable precautions to protect the HIV- from getting infected. Such as insisting on a condom or being on HAART and UD.

So I can go bareback at the bath house and not feel guilty?

[Boze]

So I can go bareback at the bath house and not feel guilty?

Here we are talking about moral stance and how laws should reflect it. Current law is pretty clear that it's not allowed.

As far as I know there has never been a case where an UD individual has transmitted. (I actually don't think it's physically possible for virus to infect if it's below a certain threshold). If one can be certain that he is  UD, I see the risk of transmission as lower than using a condom with a positive VL. I don't know what the appropriate "bathhouse etiquette" re disclosure is if you use a condom.

[edfu]

As far as I know there has never been a case where an UD individual has transmitted. (I actually don't think it's physically possible for virus to infect if it's below a certain threshold). If one can be certain that he is  UD, I see the risk of transmission as lower than using a condom with a positive VL.

Undetectable in peripheral blood does NOT = 100% undetectable in semen:

http://www.aidsmeds.com/articles/hiv_transmission_semen_1667_15189.shtml

http://www.aidsmap.com/en/news/167784F9-FD3C-4148-8AB3-F669FE941BB3.asp

[Boze]

Yes, but there still has not been a single recorded case of transmission. So we are talking a possibility - that has not yet actually occurred despite millions on HAART.

I'm not saying - Go spread your seed. I'm only saying what I consider to be reasonable form of protection.

[komnaes]

My logic rests on the asymetry of knowledge between the two parties.

I never thought I have to even rise this one but since you insist on using it repeatedly - NO, there's no asymmetry of "information", at least the one you keep mentioning is not relevant. The only relevant one here has always been either one should know or should have known (i.e. could expect) the risk of acquiring any number of STDs from unprotected sex - this is the only relevant information one needs to give consent to unprotected sex, not on a lack of communication or even misrepresentation from another party should affect that decision-making.

The "information" that you keep referring to - the HIV+ partner who knows he's HIV+ - is not and should not be relevant to the decision of the other party whether to engage in unprotected sex or not. So your primarily logic is false.

And you keep referring to the withholding or misrepresenting of the "information" by the HIV+ partner that he's HIV as a form of "cheat". This is correct, but what we've been saying all along is whether there's enough justification to make this a criminal liability instead of a "moral" ("practical" or "social" or whatever you try to name it) one.

And please STOP USING ANALOGIES as your reasons (i.e. because A is analogically similar to B, and if B is publishable so should A, etc). Many of your examples - cheating in gambling, etc - are based on this type of false analogizing, and the making of a specific law to deal with a specific interaction should be considered on its own grounds.

As Ann has pointed out - people cheated and lied all the time - but not all withholding of information, misrepresentations and lies carry criminal liabilities. If and when such liability arises, it's always not just created by an "asymmetry" of information between the parties alone. There needs to be additional justifications - and they never exist in the case of criminalizing HIV transmission.

So, you tell me - considered what I have said above, what are those additional justifications (bar your misplaced "asymmetry" of information) of criminalizing HIV transmission via consensual unprotected sex?

(sorry for the late modifications of some typos)

[fearless]

I would be happy to learn where I made the mistake.

For starters, you state there are  23,133 Aussie male having HIV - this is the number of diagnoses of males. In total (male and female) there are an estimated 17,444 people LIVING with HIV in Aus. The others have since died.

You assumption of a similar dynamic between Australia and the US is just wrong. HIV is Australia still predominantly affects men who have sex with men. the avert figures allude to this - 2008 - 837 males diagnosed compared to 136 women. and if you bothered to scroll down a little:

"Transmission in Australia continues to occur primarily through sexual contact between men. Around 66% of people newly diagnosed with HIV in 2008 were among men who have sex with men; 27% were exposed through heterosexual contact; 3% were due to injecting drug use; and a further 3% were men with a history of both injecting drug use and sex with other men. In 5% of cases the route of HIV transmission was categorised as other or undetermined."


I will not even bother going further as I'm not sure what point if any, you were trying to make.

If we had just maintained the white Australia policy we would have never ended up in this mess.

Sean's post was the only one in this thread that has made any sense.

[Grasshopper]

I will not even bother going further as I'm not sure what point if any, you were trying to make.

If we had just maintained the white Australia policy we would have never ended up in this mess.

What's the point YOU are making with this odd statement  ?

[newt]

Yes, but there still has not been a single recorded case of transmission.

Case report of sexual transmission when viral load suppressed to <50 copies/mL
http://i-base.info/htb/130

[Ann]

Good article, Newt, thanks for posting.

[Hellraiser]

Case report of sexual transmission when viral load suppressed to <50 copies/mL
http://i-base.info/htb/130

I'm curious to know whether he was the insertive or receptive partner.

[Miss Philicia]

I'm curious to know whether he was the insertive or receptive partner.

I know it's probably alien to you but not everyone is a 110% catcher in the ass.

[mecch]

If we had just maintained the white Australia policy we would have never ended up in this mess.

HOLY FUCK.  People's cards are on the table now. 

This thread was heading to hell. Two pages ago I could only read the longer posts attempting to discuss with real facts and laws, and in a general sense, and not the personal bickering posts.

I don't know if you are saying this ironically or stupidly or if you are really a racist but I do know you would fail the high school debating lesson, because that is one lazy ass lame stink bomb to throw into a debate.

[Matty the Damned]

HOLY FUCK.  People's cards are on the table now. 

This thread was heading to hell. Two pages ago I could only read the longer posts attempting to discuss with real facts and laws, and in a general sense, and not the personal bickering posts.

I don't know if you are saying this ironically or stupidly or if you are really a racist but I do know you would fail the high school debating lesson, because that is one lazy ass lame stink bomb to throw into a debate.

Oh settle down. Of course he's being ironic. 

MtD

[mecch]

relieved!!   

[loop78]

Hey! An HIV criminalization thread! It must be Tuesday!  

Scenario:

Two people, one of them positive, willingly decide to have unprotected sex. Transmission happens.

Responsibility:

Both of them are fully responsible for that transmission. It's the result of the choice made by both of them.

Caveats:

1) IF the poz knew his status AND didn't disclose, he is not only responsible for that transmission but he also did something morally wrong (knowingly risked causing harm).
2) Morally wrong should not always equal criminally punishable. E.g.: if prosecuting it would cause more harm than it would prevent (stigmatize  hiv status, keep people from testing, promote ignorance and lack of responsibility for our own health). Criminalizing consensual sex HIV transmission is a danger for public health.
3) There is only one way a negative person can have sex without risk of hiv: using a condom. The rest are excuses.

PS: By the way, hiv is not "given", it's transmitted.

[Ann]

Hey! An HIV criminalization thread! It must be Tuesday! 

Or Wednesday? Tuesday was yesterday. I know because the bin-men were around today, and they only turn up on my street on a Wednesday.

Criminalizing consensual sex HIV transmission is a danger for public health.

There is only one way a negative person can have sex without risk of hiv: using a condom.

The rest are excuses.

Well said.

[unclespongebob]

   should it be everybodys place to have condums noty just the guy 

[Boze]

Don't have the time/inclination to fight windmills anymore. Those of you who want to live in lala-land and think that the law is wrong - please continue to do so. I'm sure there are people who think that much worse transgressions should not be criminally punished, our free society is meant to allow freedom of thought.
Just don't throw together idiotic laws of certain US states that give someone 35 years for spitting on a cop and reasonable laws that are used to address someone actually transmitting because they didn't think telling someone they have hiv was 'relevant'.

The rest of the population actually has common sense to appreciate that the information is relevant and that the carrier of a deadly disease has responsibility to contain it. I'm sad to observe that self-centerdness and self-interest are determining moral stance for a lot of people on this issue.

One last bit to Fearless - because I'm a geek for numbers. You managed to write a whole post detailing how my analysis is wrong because I *UNDERESTIMATED* the probability that a random heterosexual guy would have HIV. So instead of 1 out of 400 it's 1 out of a 1,000 or more. So my point is only STRONGER.

[darkerpozz]

I think I actually agree with the thinking of Komnaes and that while maral and ethical to disclose I certainly don't feel responsible for every HIV- person turning positive based on sex with me and he SAYS he only had sex once like the article states two monogamous folks having sex and one turns up positive and HE SAYS he never had sex outside the relationship all this is too circumstantial evidence and tiring 

[komnaes]

Don't have the time/inclination to fight windmills anymore.

Actually, either did most of us.. but this is such an important topic that deserves every bits of its attention.

Those of you who want to live in lala-land and think that the law is wrong - please continue to do so. I'm sure there are people who think that much worse transgressions should not be criminally punished, our free society is meant to allow freedom of thought.

Again, you're expanding a reason to against A to cover a series of other "transgressions" B, C, D, etc. I said repeatedly that each moral transgression should be dealt with on its own grounds, if we're to either support or against making it a state's duty to enact criminal liability.

We've all along been dealing with HIV transmission through consensual sex, and if you cannot offer better arguments just admit so.

The rest of the population actually has common sense to appreciate that the information is relevant and that the carrier of a deadly disease has responsibility to contain it.

What common sense? Are you saying we're so self-centered that we don't have that common sense that we have that responsibility, just because we think criminalizing this responsibility is not the best way to deal with it?

This is NOT just a position advocated by those who are HIV+ like us. Look and do your research - this is a position shared by many jurists and legal scholars who do not have that "self-centered" reason to agree with us. So they don't have common sense too?

What is lacking common sense is criminalization itself as a means to contain transmission, and it serves no purpose but to perpetuate discrimination and stigmatization. As someone who has been and will continue to be directly affected, your "common sense" may in time convince you otherwise. As of now, if I see you ever try to use such words like "lala-land", "self-centered", etc, and as Ann has respectfully said to you before:

FUCK YOU!

And I will make sure I come back to debunk every time.

(modified to add "Bold" to "FUCK YOU")

[Hellraiser]

Kom, deliberate personal attacks are uncool.  You should be catty and use your wit to make your foes tremble at your every concealed comment.  Anyway, in any discussion there is a difference of opinion and even though you disagree with Borzel you shouldn't be so upset with his comments that you level an attack at him.

Borzel, the guy is reprehensible but saying that he was criminally negligent is equally bad.  Yes he >MAY< have infected someone with hiv.  We honestly don't know that he did, what we do know is that he slept with someone without a condom, both parties agree on that statement.  So the woman involved, we'll assume, knew that he could be carrying any number of STI's and chose to sleep with him anyway.  He knew he could potentially infect her with his HIV and slept with her anyway.  Poor decision making on the side of both parties, but should he now sit in jail for it?  I personally think he should not, unless a pattern can be formed where he has been serially infecting large numbers of people with the same rigamarole.

Realize that at this point in time it is his word against hers.  She has hiv, He has hiv.  They slept together.  Who is to say she slept with no one else or that she may have had hiv prior to sleeping with him?

[sharkdiver]

Kom, deliberate personal attacks are uncool.  You should be catty and use your wit to make your foes tremble at your every concealed comment.  Anyway, in any discussion there is a difference of opinion and even though you disagree with Borzel you shouldn't be so upset with his comments that you level an attack at him.

um, you are not a mod. back off

[mecch]

Moderators are not the only contributers who can take a thread to the meta level to discuss how the argument is going as a conversation.

[Matty the Damned]

Moderators are not the only contributers who can take a thread to the meta level to discuss how the argument is going in the abstract.

Jesus.  Tell me you don't talk like that in real life.

MtD

[mecch]

Sadly yes but there are concomitant advantages - I just got tenure! yeah me.

[Miss Philicia]

Sadly yes but there are concomitant advantages - I just got tenure! yeah me.

No wonder you were up until 6 am last night.

[WillyWump]

FUCK YOU!

*snicker* This is like the movie Groundhog Day. No matter how much progress I think we make, all of the sudden we are back on page 2 again.

-W

[BT65]

*snicker* This is like the movie Groundhog Day. No matter how much progress I think we make, all of the sudden we are back on page 2 again.

-W

Actually, Shauny (Komnaes) has made some beautiful and extremely logical points, and did it very well.  If he has to add a little emphasis, well, so be it.

[BM]

I'm sorry but I don't think you quite understand conditional probability. You are confusing ex-ante and ex-post probabilities.

Oops you're right, I have confused the numbers. Sorry for wading in!

[in this life]

Thank you for clarifying that he did not in fact mean to transmit HIV, you're absolutely right. It was reckless.

A few individuals have actually  were prosecuted for willful transmission, found while researching the topic: http://www.avert.org/criminal-transmission.htm

Dr Richard J. Schmidt, 19985,6: Richard Schmidt was a doctor from Louisiana, USA, who was accused of infecting his lover, a nurse called Janice Trahan, by injecting her with HIV infected blood. Trahan alleged that Schmidt had injected her with the blood of one of his positive patients in an act of vengeance after she tried to end their relationship. DNA samples of the virus in Trahan's blood and that of the positive patient in question were found to be very similar, but Schmidt's defence team insisted that 'very similar' was not scientifically accurate enough. HIV rapidly mutates and changes its DNA structure once it enters another person's body meaning comparisons can be difficult. However, using a new technique called ' phylogenetics' (or 'evolutionary analysis'), scientists were able to determine that Schmidt's patient was extremely likely to have been the source of the virus found in Trahan. Schmidt was found guilty and sentenced to 50 years.

Brian Stewart, December 19987: Stewart was a medical technician from Illinois who was sentenced to life in prison after deliberately injecting his son with HIV infected blood, allegedly in an effort to kill him and avoid paying child support. He was found guilty after all other suggested sources for the boy's infection were ruled out. On one occasion Stewart allegedly told the boy's mother not to bother seeking child support because the child would not live beyond the age of five. On another, he told colleagues that he had "the power to destroy the world? I would inject them with something and they would never know what hit them."

thehiv=was my best friend ,he has recently passed away

[Realist]

I'm late on this debate

Criminalisation misplaces the moral onus of self-protection and shifts the burden of preventing transmission to one person instead of recognising it as shared by two. This is a hard but necessary thing to say. HIV has been around for three decades, during which the universal public health message has been that no one is exempt from it. So the risk of getting HIV must now be seen as an inescapable fact of having unprotected sex... We cannot pretend that the risk is introduced into an otherwise safe encounter by the person who knows or should know he has HIV. The risk is part of the environment, and practical responsibility for safer sex habits rests on everyone who is able to exercise autonomy in deciding to have sex with another.

Justice Edwin Cameron, South Africa Constitutional Court, 2008.

Just about sums it up.

I also found this extremely useful:

http://www.aidsmap.com/page/1410517/

http://www.aidsmap.com/page/1441686/