Wilmette Illinois Man Charged with Knowingly Transmitting HIV

[Ptrk3]

The story does not reveal all the facts (whether his use of antiretroviral medication achieved an "undetectable" viral load or whether, crucially, any of his partners, indeed, became infected, per the alarming, possibly, false, headline), but should serve as a reminder to people living with HIV that the issue of "disclosure" before sex is still front and center and that lack of disclosure can result in criminal charges even if the person charged is, in actuality, "undetectable" (not clear from the story) or even if the HIV is not, in fact, transmitted (also unclear from the story):

http://www.chicagotribune.com/news/local/breaking/ct-wilmette-personal-trainer-accused-of-knowingly-transmitting-hiv-20161009-story.html

[CaveyUK]

I think it's worth pointing out that criminalisation laws around HIV differ wildly depending on which part of the world you are in, and in the case of the US - which State you are in.

It's not stated in the story, but it's highly unlikely the three women in question have all contracted HIV if, as his lawyer states, he has been UD and adherent to meds for years. This sounds like a classic case of 'intent' to transmit, which in some US states can happen even if condoms are worn and no infection takes place, if disclosure hasn't happened beforehand. It often comes down to the word of the 'victim' against the defendant too, as even when disclosure happens it is seldom documented.

It's a ridiculous take on the law, and is completely out of date given what we now understand about transmission risks. It is however the way it is, and so non-disclosure in such states is a recipe for disaster. It also opens the possibility for ex-lovers to suddenly declare that disclosure didn't happen (even if it did) and the weight of the law falls on their side, potentially ruining the life of the defendant.

In the UK (well England and Wales at least), the law is quite different. You can only be prosecuted for transmitting HIV knowingly if the 'victim' has tested positive. Condom usage and adherence to meds would be a valid mitigation for the defence and genotyping is also used to ensure that the virus type could have been transmitted from the defendant. The only cases you tend to hear about over here are where there has been a number of people who have contracted the virus, and the source person was being knowingly reckless (ie. not only not disclosing, but also not using condoms or being on effective ART).

In Scotland, the law is slightly different in that transmission doesn't need to have occurred however the defendant still has to have been shown as being clearly 'reckless' in their approach to risk.

It would be nice for the laws in certain countries, including the US, to be brought up to date so that the needless criminalisation of the condition can end.

[leatherman]

as even when disclosure happens it is seldom documented.

tbh is disclosure ever documented? video disclosure and acceptance? a signed affidavit and consent form? 

is completely out of date given what we now understand about transmission risks.

of course, now that there is so much evidence showing that TasP is an excellent prevention measure, this would be a GREAT advocacy point for changing HIV criminalization laws.  Unfortunately in the Southern US states, this criminalization only increases the simple stigma of being positive and just adds to the problem of getting all people infected with HIV+ tested and into treatment.

Sadly in America, where fear rules nearly half the population, it's an uphill climb to get legislation, using fact-based evidence, that takes into account prevention measures like PrEP and TasP - much less the issue of whether HIV is even transmitted or not! 

[Jim Allen]

Interesting was the lecture from a UK/Irish Barrister who is doing research on transmission laws it talks about UK and Ireland as main focus but also talks about Canada and US in his research.  http://positivenow.ie/live-webcast-eddie-matthews-bl-on-the-criminalization-of-hiv/ The sound does drop off or get poorly but still its interesting and the sound is fixed during the recording.

In Scotland, the law is slightly different in that transmission doesn't need to have occurred however the defendant still has to have been shown as being clearly 'reckless' in their approach to risk.

In Scotland, there is the added possibility of a case being brought even if transmission hasn’t taken place but where a person has been put at risk without their prior consent or knowledge. What that means in practical terms has not been well addressed hence last time i had legal advice it was disclose when visiting Scotland.

Anyhow look i agree with the general point of view here that disclosure laws are over the top however being practical about it I would be careful about not landing myself in jail, the other one I always kept more in mind was someone finds out and freaks and takes matter into their own hands. Last thing i need is a baseball bat to the head. 

But whatever everyone is doing just try to take care of yourself.

Jim

[leatherman]

Last thing i need is a baseball bat to the head. 

amen to that!

R.I.P. Elisha Henson and Cicely Lee Bolden

http://www.hivplusmag.com/stigma/2014/06/19/shocking-tragedy-hiv-positive-woman-murdered-texas-after-performing-oral-sex
http://www.hivplusmag.com/treatment/law-crime/2013/11/06/40-year-sentence-man-who-killed-hiv-positive-lover-steak-knife

[paintedroom]

Good to know and glad there are laws at all.

At this point in time i can`t conceive of having sex again.It doesn`t seem to bother me.i guess i`m still just relieved to be alive, if ever watchful of possible complications.Its those dam defcons..ìm at Defcon 5 which is the lowest.I`ve become superstitious which is to say if i take my eye off things,it might let the devil in..and i`m no virgin from Walton`s mountain,rather a world weary rationalist.
This might annoy some members but i think its too much to ask of someone who is HiV negative.I wouldn`t blame them one bit if they took offence or thought me out of my mind.I think the only hope for my imaginings are with other Hiv positive people.I seems ethical and pragmatic.

No offence meant to anyone and please feel free to remove this comment if i`ve strayed off topic.

[CaveyUK]

Good to know and glad there are laws at all.

At this point in time i can`t conceive of having sex again.It doesn`t seem to bother me.i guess i`m still just relieved to be alive, if ever watchful of possible complications.Its those dam defcons..ìm at Defcon 5 which is the lowest.I`ve become superstitious which is to say if i take my eye off things,it might let the devil in..and i`m no virgin from Walton`s mountain,rather a world weary rationalist.
This might annoy some members but i think its too much to ask of someone who is HiV negative.I wouldn`t blame them one bit if they took offence or thought me out of my mind.I think the only hope for my imaginings are with other Hiv positive people.I seems ethical and pragmatic.

No offence meant to anyone and please feel free to remove this comment if i`ve strayed off topic.

It's a natural way to feel but I think you will be surprised. Not only at how your desire for sex WILL return, but also by how many sensible HIV negative folk out there are tuned into the risks. Yes, there are a lot that are not, but there isn't a rule that says you have to contain your sexual desires to folk who share the condition.

[CaveyUK]

In Scotland, there is the added possibility of a case being brought even if transmission hasn’t taken place but where a person has been put at risk without their prior consent or knowledge. What that means in practical terms has not been well addressed hence last time i had legal advice it was disclose when visiting Scotland.

I think - although I'm not lawyer - that the situation is more nuanced than that, as there would have to be 'reckless' behaviour exhibited, which allows for some mitigations in defence that are not permissible in many US states (for example).

Anyway, I will just avoid knobbing anyone from Scotland

The England & Wales legal position seems like the fairest and most logical approach to me but I don't have any faith that the US will look in this direction for guidance!

Of course, disclosure is always a good thing regardless - especially in a 1-on-1 situation however I accept there are more extreme situations where it may not be practical. I know we have gone through this before and there are differing opinions but I can't see many people stopping a room full of heaving bodies in a gay sauna, or a swingers club to politely disclose. The key thing in these scenarios is to ensure that sufficient protection is used, and there is a certain onus on people to assume that their partner(s) will be positive also and act accordingly, especially as even a negative result is only good for the day the test was run and they are indulging in high-risk activity by definition. I suppose there will be few people in those situations who will be able to accurately determine the source of any transmission anyway or be keen to prosecute, so it may be moot.

In summary - Everyone should take accountability for their own health, and the US legal system is messed up

[Jim Allen]

No offence meant to anyone and please feel free to remove this comment if i`ve strayed off topic.

 

The mods have thicker skins than that. You are free to express yourself as long as its within certain logical limits and done so polity

Jim

[Jim Allen]

Anyway, I will just avoid knobbing anyone from Scotland

In short that is what the barrister said...

The summery is each to his own, but take care and fair warning to the risks.
The judge is not going to care if it was not practical to disclose at the time in nations/states with laws saying you have to do so.

Jim

[gcr.mty.mx]

I am seriously conflicted on this subject. I just haven't made up my mind, don't have enough info yet.

I'm almost entirely sure in Mexico there are no laws forcing disclosure, yet. Are they necessary?

Personally I do not need it, I just don't have sex before disclosure, period. And you know it's not that difficult, just look on grindr and you'll find someone to have fun with who is either positive or poz friendly. Generally these people are informed, willing and looking for someone in the same situation. It's not about hooking up all the time, but there's options out there. Condoms are a MUST even in this scenario, STIs, crazy people, etc. That takes care of having fun.

Dating... why would you keep dating someone who is not open to or who you cannot tell about your hiv status? Ok, you might not get into bed on the first date (again, there's grindr for that), but by the third date you know if that person is someone worth sharing your situation with, stepping up and disclose.

So no, I think coherent, normal, regular thinking people don't need laws and should not be criminalized even if there is an accidental transmission. Mistakes do happen.

HOWEVER, there are messed up people out there and there is a need to make them accountable for purposely transmitting if it is the case, don't you think? What if you know you are poz but deny it for sex? That is definitely unethical and should have some degree of consequence. Few nut jobs out there and we all loose.

Am I making sense? Are there any different points of view to my general view of the matter?

G

[gcr.mty.mx]

Oh, and forgot to add. Generally my experience with the people I've met is that you have the right to reserve your status as long as you know you are taking the steps to not transmit. But still, I kinda think you are lying by not telling. But then again if it's only a hookup you can't guarantee the other person is being honest too. Back to condoms, always.  And back to not really knowing where to stand on this.

[bocker3]

HOWEVER, there are messed up people out there and there is a need to make them accountable for purposely transmitting if it is the case, don't you think? What if you know you are poz but deny it for sex? That is definitely unethical and should have some degree of consequence. Few nut jobs out there and we all loose.

Am I making sense? Are there any different points of view to my general view of the matter?

G

But why just for HIV?  Many people (hundreds, if not thousands) die from the influenza virus in the US every year - and people recklessly go out with the flu and infect other people.  The simple act of going to work while sick can end up killing someone because the flu virus is passed on.  Yet, there are no laws that criminalize this?  Why is "our" virus different?  It's because it's sexually transmitted and is associated with "those" people (gays, drug addicts, etc).  It is because of ignorance and stigma. 

There are laws that would be able to be used to handle the "nut jobs" of which you speak, without criminalizing HIV.

Mike

[gcr.mty.mx]

But why just for HIV?

...was just getting there in my thoughts.

So do you think someone who knows is hiv+ and exposes someone with premeditation should not be accountable? I get that there's other viruses but these are usually airborne transmitted and I would think in a more "accidental" manner. And there's more effective (as far as fully eliminating the virus) meds for these infections. No?

...not defining my posture, just adding more thoughts to the subject.

[gcr.mty.mx]

But then again, if you're asking someone if they're hiv+ and expect to get a straight or informed answer in every case, then you're just being naive. Therefore, unless you have been forced into having sex, everyone should be accountable for their decisions. There's diseases out there, protect yourself. I think I'm happy with this posture.

[Jim Allen]

http://www.cotswoldjournal.co.uk/news/local/moreton/3859565.Man_jailed_for_infecting_woman_with_deadly_Hepatitis_during_sex/

Ill add that in some jurisdictions its not just HIV however HIV is still the main focus of places that have or apply laws against not disclosure and/or transmission of STI's to my knowledge. 

But then again, if you're asking someone if they're hiv+ and expect to get a straight or informed answer in every case, then you're just being naive. Therefore, unless you have been forced into having sex, everyone should be accountable for their decisions. There's diseases out there, protect yourself. I think I'm happy with this posture.

I agree everyone should be, however its not the legal reality in some places or as we saw with Leatherman's post the only risk or concern. I also agree with your earlier point that if you after a hook-up go on to date someone it poses the disclosure after the fact concern.   

Jim

 

[bocker3]

...was just getting there in my thoughts.

So do you think someone who knows is hiv+ and exposes someone with premeditation should not be accountable? I get that there's other viruses but these are usually airborne transmitted and I would think in a more "accidental" manner. And there's more effective (as far as fully eliminating the virus) meds for these infections. No?

...not defining my posture, just adding more thoughts to the subject.

People go to jail for "accidentally" killing people all the time.  People still die from the flu with treatment -- the treatment isn't all the "effective" and mainly it is one's own body that defeats a flu infection -- if it doesn't kill you first.
Plus -- these HIV laws are used whether intentional or not.

My point is that there are a myriad of laws that could be used to prosecute an intentional case, without creating laws that call out HIV as some special circumstance.  It allows for cases to be brought forward that really should not be, because no harm was actually done and no malice existed.

To be clear -- Disclosure and criminalization are two different things in my mind.  I am PRO-disclosure but ANTI-criminalization.  People often intertwine the two topics in these discussions and assume if one doesn't thing a case should be tried that they also believe disclosure isn't necessary.

Mike

[harleymc]

I think criminalization is such a clumsy tool to try and reduce transmission.
We just have to look at the incidence (rate of transmissions) of HIV and the number of convictions to see that it is useless.

Then if we do get a conviction we put the person into an environment where there's no condoms, no PreP and only very rarely treatment as prevention. We've made the situation worse.

We have knee-jerk legislation that is thought out really badly.

The ripple effects of the legislation are not too pretty either.
People assume that they are going to be disclosed to and abnegate all responsibility for their own health. People avoid testing, people make dodgy judgements that its less safe to have sex with someone who has disclosed HIV status, than with someone who claims to be HIV negative.
Lots of unintended consequences quite a few of which are helping fuel the spread of HIV.

Disclosure laws fit very nicely with the predominant individualistic ideology beloved by capitalism, they just don't fit nicely with public health.

[CaveyUK]

Before I was diagnosed, I would have taken great solace in someone saying - if asked 'I tested Negative last month'. Now of course I realise that is a completely ridiculous question and an equally ridiculous answer, as it affords no guarantee of safety - unless I had a time machine and could go back to the day they were tested. If indeed they were actually tested. I would have even felt more comfort in someone being oblivious to their status for some bizarre reason.

Now I realise that it would be far safer to sleep with someone who is HIV positive and on effective treatment than the 'unknown status' or 'previously known status' person.

Of course, in the general population there are a vast number of people who would run a mile from anyone positive, whilst being happier to take risks with people of unknown status. The irony being... thats how I got here in the first place.

In amongst all the education about getting tested, It would be really good if there was a concerted effort to get the message out there that not knowing someones status is far more dangerous than sex with someone with controlled HIV. I don't hold my breath at that message ever getting out though.

All the above isn't directly related to disclosure, other than the dynamics involved help fuel the lack of disclosure in some settings, and when you layer criminalisation on top of it all well....it's a far from ideal situation.

[leatherman]

not knowing someones status is far more dangerous than sex with someone with controlled HIV. I don't hold my breath at that message ever getting out though.

now that we have so much more proof about TasP, perhaps this can be the new message that advocates can take to the streets and legislatures

[LukasAtlPZ]

I though the whole point, at least in some states, was to criminalize sex, especially gay sex.