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Sex while HIV Positive: The New Criminals

As you and I relax here surfing the internet, an HIV positive man is sitting in a Texas prison, serving a 35 year sentence for spitting on someone. In Michigan, an HIV positive man was charged for not disclosing his status under a bio-terrorism statute. And just weeks ago, Nadja Benaissa, an HIV positive German pop star, barely escaped prison when a judge gave her a suspended sentence for not disclosing to her sexual partners.

JailHandsThis is an emotional issue that carries some baggage. Many of us have a friend who was infected by someone who lied about their status or didn’t disclose, and these infuriating instances make me want to see those people “pay” for what they did. But the more I have learned about the criminalization of HIV status non-disclosure, the more I am convinced these laws are applied badly and actually do more harm than good. If I don’t get tested, I can’t be prosecuted for not disclosing my status, right?

At the 2010 Gay Men’s Health Summit in Ft Lauderdale, I spoke with POZ Magazine founder Sean Strub following his workshop on criminalization. Sean is the force behind the Positive Justice Project, which advocates against HIV criminalization as part of the HIV/AIDS Center for Law and Policy.

Sean does a terrific job at explaining the harm to public health created by criminalization laws. I’d also like to mention the great work being done by Edwin Bernard in Europe and AIDS Map regarding this issue. HIVPlus Magazine writer Ben Ryan did a strong piece on this early last year. And of course, The Body has a wide collection of postings on this issue.

Do you support laws that criminalize people who don’t disclose their status before sex? Should they be repealed? I’ll be interested in your reactions to this interview!

In the meantime, my friends, please join my mail list at the upper right, or become a Facebook fan in the left margin. I promise I won’t stalk you! I send occasional e-mails about postings and I would love to include you.





  1. Vlad September 6, 2010 at 2:06 pm

    Great post BTW. Criminalizing people who don’t tell their partners before having sex can have mixed results in my opinion. I think a good approach as punishment for such an act is a large fine and/or shouldering medication of victims. Putting an infected man.woman to prison could cause an HIV epidemic inside the prison.

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  2. frank September 7, 2010 at 4:39 pm

    I would be in favor of criminalizing HIV if we also criminalize fat parents who over-feed their kids and end up with diabetes; smokers who subject their partners to diseases from second-hand smoke; or single mothers who recklessly spread their legs and abuse the welfare system. why are gay men criminalized? because we are asleep at the wheel and our leaders are too busy playing dressup at blacktie galas, and getting married at the local Ritz Carlton.

  3. Robert Meek September 8, 2010 at 2:42 am

    But these people were tested, they do know, and they failed to disclose. I remember when this came to me face to face. A potential romance partner, whom I met online, as us both being seropositive, was telling me with irate sneering that he most certainly did NOT VOLUNTEER his HIV status to casual partners. He said “IF they don’t care about themselves enough to asks, why should I tell them? I’m not their babysitter!” I’m sorry, but men like HIM are people who SHOULD be prosecuted.

    To me, that is essentially INTENT to harm. One step away. It’s KNOWINGLY risking someone WITHOUT their consent. I’m not talking about SPITTING on someone. Nor am I saying it is “bioterrorism”! But such an attitude is VERY wrong, as that man’s. Needless to say, I walked away, and never dated him, either.

  4. frank September 8, 2010 at 6:51 am

    OK, so we hookup with strangers, and then we engage in unsafe sex, and then we want to blame the trick when we sero-convert. Whatever happened to assuming that everyone is HIV+ and being accountable for our choices and behaviors?

  5. Lewis Watts September 8, 2010 at 7:53 am

    I see everyone’s point but lets not take any 1 point to the extreme. We are all responsible for our own health. We should never take for granted what or whats not being told to us. There are no weapons of mass destruction! …if you get my point. I am in control of my own health; no one can take that from me (even @ gunpoint…..there still is a choice). There needs to be more education on how to safely disclose to others; how to appreciate and practice a healthy sex life.

  6. Teresa September 8, 2010 at 8:26 am

    I believe that if I am not going to have sex with you and we only dating I don’t have tell you about my statue but if the relationship grows to us thinking about have sex then it is my duty to let you know that I am HIV+. Then letting you know that I practice sex safe, then it up to the other person if they would like to continue with the relationship .

  7. basil64 September 8, 2010 at 4:12 pm

    I am poz and do bareback with other poz guys for 16 years. I don’t do bareback with Neg guys so I am not criminal if I do sex with poz with consenting bareback. I always put poz or raw sex on my profile so neg guys don’t bother to respond my ad. I always turn down any neg guys or safe sex. It is my choice to do my desire to play with other poz guys.

  8. mike September 9, 2010 at 7:59 am

    In Ohio we have had severe cut backs in our drug assistance program ADAP. We are considering picketing testing sights around the state and telling people NOT to get tested for two reasons. At this point they will not receive treatment and they will criminalize their sexual behaviour. I think these 2 issues could be an effective response to the Federal and State cut backs to Ryan White…oh and they are also true.

  9. Ambrose September 9, 2010 at 8:45 am

    When the titillation at the end of your dick is more important to you than your own health, I feel sorry for you. When you encourage and support other POZ guys into the same activity, I believe that you are encouraging the spread of the disease, if ONLY within our own already infected cohort. How many mutations of the HIV virus are you willing to take responsibility for? At some point, someone you are having sex with will pass it on to some negative person. Are you willing to take ANY personal responsibility for the long-term consequences of your IMO totally selfish and self-serving attitude toward unprotected sex?

  10. Caroline September 9, 2010 at 10:11 am

    Criminalizing the transmission of HIV is ludicrous; difficult to prove, as well. I’m with Frank: assume everyone is positive and proceed accordingly. The only time I might agree with labeling the transmission of the virus, or any other potentially harmful disease, is if it happened during another crime (ie. rape/assault).

    BTW, HIV is NOT just a gay man’s disease. I know you know but your words defy that knowledge.

    (This blog was the result of the Gay Men’s Health Summit, where Sean was presenting. I’m aware of the demographics, yes, but I try to speak from my own experience. — Mark)

  11. Steve September 9, 2010 at 5:29 pm

    I’m a positive gay man living in the UK, where we also have criminalisation. In the past when I was single I chose to tell potential sexual partners my status before we ever met, let alone had sex. But I also absolutely believe in the right of any person NOT to disclose that information, unless they are directly asked. I go along with everyone who has already posted the opinion that everyone must take responsibility for their own health (I’m a public health specialist as well) It’s also worth considering that those who are on effective treatments are probably much less likely to infect others than those who have not been tested but are infected. And the use of criminalization will make it much less likely that people will choose to get tested, hence criminalization is likely to be responsible for causing more infections, not reducing them!

  12. clive September 10, 2010 at 2:50 am

    To tell or not to tell is the thing that bugs me the most about any potentially sexual relationship I may have since I was confirmed positive over two years ago. My approach is not dissimilar to that expressed here by several others. I don’t have it stamped all over my profile/s but will introduce is if our chat is heading towards a definite meet for sex. Then its up to him to go ahead or not. Its different for casual meets at a sauna or cruising ground. It never seems to be raised but I’m always happy to use protection if asked. If its obvious he wants to bareback I assume he knows the risks involved and wants to go ahead in that knowledge.

    Criminalising those with HIV for having unprotected sex with others will not have the desired effect of reducing transmission since it takes away the fundamental freedom individuals have to make their own choices regarding their health.

    Many health authorities now stress the necessity of patients making their own choices regarding their health care. My own consultant offered me a choice of three medication regimes which I had to research and decide between despite not being an expert in that field. Criminalising unprotected sex by a positive person removes the rights of their partner to make their own choices and assumes their ignorance in an over protective state nanny way.

    I agree with others who have said there are far worse things that people ought to be punished for but which seem to be wholey acceptable in the eyes of society such as overfeeding their children.

  13. Danny Miller September 10, 2010 at 1:15 pm

    What a circus!! I tested positive 3 years and 6 months ago, since then I have had ZERO sexual partners and have no plans of EVER having any sexual partners. I do however have a wonderful boyfriend, we have been together for just over a year, the first thing I told him after my name was my status. He just happens to be HIV negative, and together we made the choice of having a non-sexual romantic relationship. Other than not having sex we are your usual gay couple, we kiss and snuggle, sleep in the same bed, hold hands and all that other mushy stuff that goes along with being in love. As I work in HIV prevention and outreach I talk about HIV quite a bit, every single day, and in the last 3 years I have told just about EVERY SINGLE PERSON I have met about my positive status. Knowledge is power!! The more people know the more likely they are to protect themselves. I understand the reasons why a lot of people don’t want to disclose their status, the stigma that goes along with a HIV positive status can be hard to wear for some people. Iam not one of those people, I have nothing to be ashamed of nor embarrassed by, I have done nothing wrong, and by sharing my story if I can get someone to go get tested, or decide to slow things down long enough to put on a condom and protect themselves that is good enough for me. As far as criminalizing non-disclosure, that’s a very tricky subject. Do I think you should go to jail for bio-terrorism?? Absolutely not! Do I think you should be held accountable for your actions?? Absolutely! So should EVERYBODY!! Like my momma always says it takes two to tango!!

  14. Harry September 10, 2010 at 11:44 pm

    I tested poz just over 8 years ago. I have told every potential partner as well as every partner I have had over the last 8 years. I know the stigma behind it very well, as I have been walked away from on many occasions. I find it very irresponsible not to tell someone your status if you know it. Had I been told I would be poz now, and yes I believe there should be a kind of punishment for infecting someone through none disclosure. Prison time is a bit excessive but paying for the others meds and treatment I can agree with.

  15. Don September 13, 2010 at 9:21 pm

    If anyone thinks it is ok to not tell someone they have HIV and have sex with them they are the most selfish piece of garbage on this Earth. You are affecting this person for the rest of their lives. I really don’t think they will say “Oh, it’s ok as long as you pay for my meds!” Yea right, be real here. You basically screwed them over beyond belief. Of course the other person should want to use protection(protection also can fail), but it is your responsibility to inform them you are HIV positive. Some of you are acting like animals.

  16. colin November 11, 2010 at 5:24 pm

    i don’t think ones serostatus should even be mentioned for casual hookups .. i think a better measure of risk is to ask your trick “Do you bareback?” if so, proceed with caution. Universal precaution: if i’d taken it, I wouldn’t be Poz.

  17. Invisible February 17, 2011 at 11:05 pm

    I found out that I was poz while in an abusive relationship when I was living in Montreal back in 1988. I was 19 years old. After dealing with him, psychotherapy to deal with my abusive upbringing and three unsuccessful suicide attempts, I began to be open about my HIV status. My reasoning was this, I knew that I had very little self control while engaging in sex to be consistently transparent about my HIV status. Therefore if I got it all out in the open from the beginning then the pressure was almost all off of my shoulders because I had disclosed.

    Well back in the early 1990’s that approach back fired on me. All of a sudden people were singling me out and lecturing me on the sidewalk of Sainte Catherine street telling me to keep my mouth shut and that everyone was talking about me, crossing the street to avoid being on the same side as me. I was consistently harassed by my ex partner (who was diagnosed at the same time as me) telling me that he wasn’t positive and that I should shut my mouth because people were thinking that he was positive too. Which he was. The harassment continued until it came to blows in front of a neon penis at K.O.X.

    So I gave in to the pressure, I shut up and went into the H.I.V. closet as it were. I moved to a new town and became invisible. I came out of the HIV closet in 1999 and became active in the community. This latest criminalization tactic by the powers that be has got me nervous again. I want to be out there and become more of an activist and show my face like Mark King but I am terrified! Any damn vindictive queen with spare change for a lawyer can come after any HIV positive person that they ever raised their behind to.

    I can’t help but wonder if that is EXACTLY the desired effect of these criminalization laws. To have us fighting each other rather than our oppressors.

  18. hurt badly June 14, 2012 at 1:09 pm

    I met my partner through a mutual friend. Other people that I knew also knew my partner. They all told me he was a decent guy. We dated for about 3 months before having unprotected sex. He told me he loved me, that he was tested every year, and that his most recent test was negative. Six months into the relationship I ended up in the hospital with Hepatits B. There was no other way I could have gotten it but by him. He denied he had it. About three months later he started getting sick. All of my friends were convinced he gave me the Hep B and that he might be HIV positive but I didn’t believe it. One day he was out of town and he had left some papers from an urgent care visit on his dressor. I looked, he was positive. I was devastated. When I confronted him he tried to deny it at first, but soon admitted it. He said he was in so much denial he tried to pretend he didn’t have it. He said he was afraid he would lose me if he told me. I think if he had really loved me and AT LEAST had the decency to put a condom on before having unprotected sex with me, I might not have taken it so hard and felt so hurt. It’s a year later now and I remain HIV negative, but will have Hep B for the rest of my life. In one sense I lucked out, in another I am damaged forever. So believe me, it is NOT ok to have sex with someone and NOT tell them you are positive. And if you do, at LEAST use protection.

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