An interesting recent article in the NYT: http://www.nytimes.com/2010/04/12/sports/12hiv.html?ref=health
Nurse: So, in florida, it’s criminal to knowingly expose someone to HIV without telling them. Lots of states have laws designed to criminalize people who spread HIV, but lots of them are outdated– is that just a symptom of how the legal system works? there are lots of outdated laws on the books. does that make it problematic to write laws reacting to health crises?
Lawyer: It’s how poorly drafted statutes work, but not how the whole legal system has to work. There are at least two (what I consider to be) good ways around that problem. One is to put a sunset clause in — say the law automatically expires after some set period of time (5 years?) unless the legislature affirmatively renews it. Another is to include some broad language and then delegate the task of defining the language to an administrative agency (e.g. health department). That way, the content could be changed to keep pace with medical knowledge and realities much more easily than requiring a legislative body made up of non-doctors to keep revisiting the law.
Nurse: The example provided in the article is that some laws treat saliva of HIV people as dangerous, so things like spitting are unfailry criminalized, when we know that HIV is very, very difficult to transmit that way, if not impossible. The article points out that in missouri, even passing the virus without your knowlege can make you a criminal. how does this compare with other criminal law? can you really be a criminal if you are not aware?
Lawyer: My understanding of the general principle is that most criminal law require some kind of “mens rea” or guilty mind — you had to have some level of knowledge of what you were doing, be that negligence (you should’ve known, but you didn’t/ a reasonable person in your situation would’ve known), recklessness (you knew it was possible, but disregarded the possibility), knowledge (you knew what you were doing) and purpose (you knew what you were doing and wanted/intended that particular outcome.) Generally, laws punishing conduct without ANY of these can’t carry very stiff penalties/ can’t be felonies. But these HIV Statutes seem like even the ones not requiring you to know you were infected might be categorizable as negligence (if you could’ve been exposed, you should’ve gotten tested, and hence should’ve known your status.)
Nurse: Of course, you can make the case that you are responsible for knowing your status, but there are certainly cases where you may have very low risk factors and have no reason to believe you are infected. if you don’t know you’re infected and have no reason to believe you are, you could still be a felon. hmmm.
Lawyer: Ah. This is where we need you, nurse: who would even fall into this category? If you really have no risk factors, then how did you get it? Can you spin us a hypothetical?
Nurse: Sure. There are lots of ways that it is unlikely, but possible, to contract the virus. If two people who each have miniscule cuts on their mouths kiss, they virus could theoretically be passed although it would be a longshot. A healthcare worker, even one who is cautious and hasn’t had known exposure, could have contracted it through a cut or sore they didn’t know about, but again, it’s a longshot. You could have had sex with someone who carried the virus and had a false negative test or hadn’t fully seroconverted. These setups are less likely than your typical risk factors (sharing needles, unprotected sex with an infected person), but not impossible.
Laywer: Under the negligence analysis above, such a person could probably defend him or herself by proving that he or she wasnot negligent — i.e. had taken all precaution a reasonable person with his or her risk factors would take. (A true virgin who’d never used IV drugs or had a blood transfusion could probably show that there was no good reason for her to have gotten the test, and hence, it wasn’t negligent of her.)
Nurse: Are these laws applied uniformly? my hunch is that in some areas, gay men are targeted and singled out. I don’t have any proof for that, but. . . let’s face it. there are parts of the country where gay men are singled out for anything and everything.
Lawyer: Alas, we have basically no mechanism in our legal system for challenging a prosecutor’s decision to charge some people and not charge others. The only possible avenue for this sort of challenge would be an equal protection claim, that it’s because of minority status (here, sexual orientation) that the charges were brought. This would require proving not only a disparate impact on the minority group, but also intent to discriminate in doing it. And how do you prove intent? It’s really freaking hard. In some cases, even really shocking statistics haven’t been enough — basically, these claims are theoretically valid but unwinnable. And another problem — the Supreme Court has yet to actually recognize sexual orientation as a constitutionally-protected minority status. They’ve said that you can’t write a law saying it isn’t such a status, but they’ve stopped short of allowing it explicitly. (This is one reason why so many gay rights activists are concerned about a gay marriage challenge reaching the Supreme Court — the present membership seems unlikely to get a majority to say that it’s a constitutionally protected category.)
Nurse: Can we think of a better way to discourage reckless behavior, or knowingly endangering others? This is a real problem, and it really happens– people who are positive DO knowingly have unprotected sex.
Lawyer: I think some of the statutes are certainly less offensive than others…. for instance, the California one that punishes knowingly exposing someone without telling them WITH THE INTENT TO INFECT THEM. (Though again, how in the hell do you prove that beyond a reasonable doubt?) Do you have the sense that it’s a very small minority that behaves so recklessly?
Nurse: Well, yeah. It’s not a huge lot of people who are intentionally behaving this way. As an aside, women are at risk from this behavior because it’s much easier for a man to pass the virus sexually to a female than for a female to pass it to a male. In some of these cases, it seems like stepping up ways to provide anonymous testing and reporting to partners might help, but in cases where it’s intentional? that’s tricky.
Lawyer: I think if it’s intentional, you have much better grounds for criminal prosecution, with or without HIV-specific statutes.
Nurse: We talked about quarantining people with communicable diseases deemed a public health danger, but i don’t know that there’s an acceptable mechanism to regulate someone’s sexual behavior in this country. Perhaps we need to say “caveat emptor”– of course you may still be at some degree of risk even if you use condoms, but your odds of being infected by someone are much lower if you have safe sex. In the hospital, we use “universal precautions” dealing with body fluids– everything is potentially infected. perhaps we need a resurgance of safe sex education that empowers individuals more. If you insist on condoms, you are less at risk.
Lawyer: I think this is really important irrespective of criminal statutes, because there will always be people who are infected and don’t know it — whether or not the law says they are felons.
Nurse: Absolutely true. I wonder if anyone has ever attempted to prosecute someone for spreading HIV under a more generic law, like that they are endangering another person or even attempting murder.
Lawyer: Yes, people have been charged (and convicted!) under generic criminal laws for infecting others with HIV. Reckless endangerment is probably the best bet, though it’s usually a misdemeanor. (Can’t do serious jail time.) ttempted murder is possible if you can somehow prove intent to kill. (And at least some courts have specifically said that knowledge that you yourself are infected is NOT enough to infer intent to kill.) Also, if you do it without intent to kill, there would be a possibility of attempted manslaughter. Though these last two are much more slippery an an age where HIV is not a quick death sentence. So I think this presents somewhat of a bind — knowingly and/or intentionally exposing someone to HIV is a pretty serious offense, I think we would agree. But it probably can’t (hardly ever anyway) actually successfully be attempted murder. Reckless endangerment seems a bit light in many cases, especially if you did it on purpose. I think that’s perhaps why so many states rely on HIV-specific statutes.
Nurse: Arizona, nurse’s home, unsurprisingly has no law on the books (Arizona has few laws about much of anything. . .), but lawyer’s California calls it a felony to have unprotected sex when you know you’re infected without disclosing to your partner– but you also have to prove that you have intent to infect. interesting. (source: Lambda Legal#mce_temp_url#)
Lawyer: A few other interesting notes: I believe (though am not certain) that courts have declined to consider HIV-positive status alone a disability for purposes of the Americans with Disabilities Act.
There were also some interesting tort cases in the early 90s where people were suing each other for emotional distress for having exposed them to HIV.
In needle stick cases, you couldn’t win at all unless you could prove that the actual needle that stuck you was infected. In other types of cases, there was some interesting and largely inconclusive debate about whether the general level of paranoia in the culture at the time/ lack of understanding was relevant. (Imagine: you’re ignorant of the causes of HIV, so you are terrified that having used someone’s toothbrush, you were exposed. You’re just as scared as someone who knows he had unprotected sex with an infected person, and the thing your’e suing for is emotional distress — should your mistake, even though it was consistent with cultural understandings at the time, mean your distress is less valid?)