1st Hypothetical Case History - For debate - Who is responsible

[mecch]

Todd, a gay man in his late 30's is HIV+ and has been diagnosed a few years ago. He receives no HAART and has a viral load varying between 7-10,000.  He has received some counseling from his health clinic about the risks of HIV transmission and is of average intelligence.  He does not have an ID or regular doctor.

He sometimes disclosses before having sex with someone new, sometimes doesn't.

He sometimes does not disclose, and has protected sex. He sometimes does not disclose, and has unprotected sex.

He doesn't frequently ask the status of casual partners but when he dates a few times, and thinks it could be BF material, he does ask, and does disclose. On casual or anonymous sex encounters, he never offers his HIV status, and when asked about his status, occassionally says the truth but usually trys to avoid the question by saying he fucks safe (even if he might try otherwise in a few minutes), or lying about not knowing, or saying hes is in "good health".   

Todd has had a few boyfriends and hundreds of lovers.

Todd meets Steve, a former "farm boy" who is fresh to the city with a recent MBA from a top 20 program. Intelligent, a bit naive.  Steven has been out for 5 years and had two boyfriends and a couple dozen lovers and never met anyone HIV+.  HIV tested once a year since he started cheating on his girlfriend with a guy, in UNI, so 6 tests (neg) so far.

Steven and Todd meet hot, and have hot sex, protected, 3 times in two weeks.  They start to see each other for drinks and movies and stuff, and Todd says he always plays safe (lying) because he doesn't want to catch anyone's viruses and sees too many people barebacking these days.  Talks judgemental about barebackers.  Steve says the same, and now assumes Todd is neg, though they never ask the question point blank and get clear answers.

A few dates down the road Steve is finding Todd kinda dumb and trashy, but hot, and Todd is finding Steve kinda boring, and square, but hot and potentially trashy, since Steve swallowed his cum once.  Todd figures Steve is good for another couple of dates and then its finished.  Steve thinks Todd could teach him a think or two in the sack and maybe a bf material. 

Todd drags Steve on a drinking party/bar crawl and they end up in the sack, and with the poppers and booze, Todd fucks Steve without a condom, and Steve doesn't object and sure enough a month later Steve seroconverts.

This happens in Charlotte, Virginia.

Va. Code Ann. § 18.2-67.4:1(A)   
Class 6 Felony   Any person who, knowing he or she is infected with HIV, has sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with the intent to transmit the infection to another person shall be guilty of a class 6 felony.

Va. Code Ann. § 18.2-67.4:1   
Class 1 Misdemeanor   Any person who, knowing he or she is infected with HIV, has sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse without having previously disclosed the existence of his or her HIV infection to the other person shall be guilty of a class 1 misdemeanor.. 

Steve decides to press charges.  Todd says he had no "intent" to infect, therefore not a felony, but admits that he did not disclose. 

Are Steve and Todd equally responsible for Steve's seroconversion? 

Should Todd be quilty of a misdemeanor?  Of  Class 6 Felony?

[HereIAm]

What an interesting and probably common fact pattern.

First, my assessment is not of someone licensed to practice law in the jurisdiction the law is quoted from.  But, the laws are very similar and the analysis is similar.  So, in short, I guess it is not legal advice, but just a conversation.

Failing to disclose is clearly a misdemeanor.  Probably several counts.  Under the law, Todd would likely suffer a conviction for the misdemeanor.

The intent portion of the statute is very difficult.  While Todd was drinking, a defendant can not use voluntary intoxication as a defense.  However, I think it would be difficult for the prosecution to prove intent.  I am not sure inferred intent would be enough here.  I think it is very slim on intent for the felony.   This means that this is a case that would probably have to try to a jury.  If Todd were my client, I would try it on the intent issue.

Now, that is the legal analysis.  But, is there shared responsibility?  Certainly.  Consenting to have unprotected sex means you are risking a sexually transmitted infection.  End of story.  We do have some duty to help ourselves, or mitigate damages, as it were.  That is why this case would not be a good civil (tort) case against Todd, in my view.  The "victim" participated and failed to mitigate his own damages.

I think we have to take care of ourselves.  We have to be responsible for our own bodies and relationships. 

[skeebo1969]

   Todd should get an ID doctor as soon as possible so that he can keep his low viral load in check.  He should also limit his alcohol intake and keep its use in moderation.

   You forgot to mention what Todd's Cd4 are.  Man I kind of feel bad for Todd....

   I hope for Steve's sake he does not follow Todd's lead in not obtaining a good ID doc early on.

  

[newt]

Everyone here is a case history, all real. For me it don't run well to have real life mixed up with case histories tagged "who is responsible?" There's no way to not even see a thread, and I guess people's free to make use of this LIVING WITH forum as they see fit, but for me moral theory studies is a bit off-topic and I don't like seeing these threads.

bedtime

- matt

[denb45]

He sometimes disclosses before having sex with someone new, sometimes doesn't.

He sometimes does not disclose, and has protected sex. He sometimes does not disclose, and has unprotected sex.

He doesn't frequently ask the status of casual partners but when he dates a few times, and thinks it could be BF material, he does ask, and does disclose. On casual or anonymous sex encounters, he never offers his HIV status, and when asked about his status, occassionally says the truth but usually trys to avoid the question by saying he fucks safe (even if he might try otherwise in a few minutes), or lying about not knowing, or saying hes is in "good health".   

quoted above is what I have a problem with    why Todd does not disclose, rejection, not being cool, or WHATEVER...is not a valid excuse not to disclose, it's just plan WRONG and irresponsible, in my opinion, and, as for Steve, he should have known better  you have to treat everyone (that you don't know) like they have STD's or HIV, by being safe and using your own good judgment..........what Todd is doing, isn't being very smart at all, you have to take responsibility for you own actions when they may harm others........

[mecch]

I guess people's free to make use of this LIVING WITH forum as they see fit, but for me moral theory studies is a bit off-topic and I don't like seeing these threads.
- matt

Your point taken, I just posted 3 to clear the air. And the Dutch case is real. Sweet dreams.

[skeebo1969]

     Seriously speaking...

     Steve is responsible for his own infection. 

[anniebc]

And seriously speaking, you are writing stories based on assumption rather than fact or reality, the reality is this forum is for those who are actually "Living" with HIV...I'm moving your "Hypothetical" stories to 'Off Topic"

Jan

[jkinatl2]

I for one see a real intent behind these threads.

And find it destructive.

Just saying.