Court to rule on duty to disclose HIV to sex partners

Some critics argue the old ruling is outdated because of medical advances since then in treating the virus that causes AIDS. The court ruled 14 years ago that people with HIV must inform their partners of their condition, or face a charge of aggravated sexual assault, which carries a maximum life sentence. Interveners in the case say advances in HIV therapy have resulted in people able to live long lives with minuscule levels of virus that are almost impossible to transmit. Read more: www.cp24.com...

i don't see that the fact better treatments are a point to changing the ruling. HIV is a dangerous thing no matter how "little" you may have. the point remains you have it you SHOULD have to disclose this fact to any potential partners. the fact is it's not something there is a cure for and as such they are a risk to others. it is bad enough many people have gotten it through no fault of their own and i would think that THEY would be the first to agree that it is something that you NEED to inform people about.

i agree that someone who does not disclose the fact they have HIV should be put away as a danger to society. it is not that i want to see everyone with HIV behind bars, just those that pose risk to others just because they put their wants ahead of other people's safety. in fact it seems from stories i have read over the years that some people who suffer from things like HIV want everyone to suffer like they are and seemingly go out and try to infect as many people as possible.

it's kinda sad that things like HIV among other things has even affected the rules and way first aiders operate. it is now up to an individual whether or not to give mouth to mouth because of potential risks involved. which of course means that many people will opt out of mouth to mouth because they probably don't know the person they are working on. not to mention the fact that many will now do nothing for a bleeding wound if they don't have proper gloves because of the risk of treating somebody, "just keep on walking when someone is in need of help" may become the new norm. almost makes one think that it may be time to have some way of communicating diseases such as this in a way apparent even if the person is unconscious.

I find it baffling that anyone could think a ruling that requires fair disclosure to a partner when you're carrying a virus fully capable of killing them in a real ugly way needs reconsideration at all. It seems a total no brainer and I'll say this...if someone KNOWINGLY infected me and could have warned me but chose not to? Well, to stay decent, I'll simple say they absolutely would not outlive me and leave it there.

It's not just AIDS as far as I'm concerned... The same disclosure ought to be required for anything that is contagious and either fatal or known to be drug resistant. This new Gonerrhea strain is downright scary and comes immediately to mind as an example. So does Herpes.... It's just a matter of informing another human being you COULD, potentially, pose a serious and immediate bio threat to them. What can someone possibly have against that unless privacy actually comes above the rights of others to pursue life itself?

i agree... shouldn't it just be automatic that you tell your partner..! how could you not..?
and as Wrabbit so deftly put

if someone KNOWINGLY infected me and could have warned me but chose not to? Well, to stay decent, I'll simple say they absolutely would not outlive me and leave it there.

agreed with you 100%..!!!

OP

it is now up to an individual whether or not to give mouth to mouth because of potential risks involved.

i wasnt aware of this until i read your thread.. thats kinda fair enough, but at the same time its worrying too - surely they could come up with some sort of ingenious way of being able to give people mouth to mouth without the aider being affected by any disease/illness that the injured party may or may not have...?

reply to post by generik


Most AU jurisdictions have either criminal or public health legislation to cover this, so it shouldn't take long to be bought into other common law countries.

LINK

Being HIV-poz, gay and living in southern Africa (with a huge amount of HIV-poz people in general) makes this a very compelling issue.

I'd say for myself that I've been open about my HIV-positive status since testing poz, and I make sure I have witnesses while disclosing my status before it even gets to bedroom politics (which hasn't been often, and has never been unsafe).

This is also what I've made newly HIV-poz people aware of in some past threads, because the legal issues are threatening to overwhelm a safe sex message for all in some countries.

That being said, in SA there has been some debate about whether we need such a law to specifically criminalize HIV non-disclosure.
There are current laws on attempted murder or assault that have only recently caused some potential test cases, however HIV will actually have to be provably transmitted, and knowingly and deliberately transmitted.
There is no real law on non-disclosure itself.

Currently the position against such a law seems more sensible, mainly for the following reasons:

- HIV has been a national emergency in SA and the region.
The aim has been to reduce stigma and to offer treatment, and to encourage testing.
Public health response is seen as dependent on people knowing their HIV-status.
To put a special onus on HIV-positive people leading to criminalization is not an encouragement to know your status.

In fact, it has been difficult to get people to test.

Even in Western countries the people who are untested often outnumber the positive people who have tested.

To criminalize knowing your status into the bedroom creates further fear, and an active reason for already frightened people not to know their status.

Despite much media attention to cases of people knowingly spreading HIV, most HIV is spread ignorantly by people who do not know their status.
People who do know their status actually did the right thing by getting tested, and that greater public good should not be discouraged.

Basically those laws suggest that as long as one is ignorant of one's status and hasn't tested, then one can do as one likes.

- All people have a duty to protect themselves from HIV and STDs, and other unwanted risks of sex.
HIV-negative people should protect themselves from infection, and poz people should protect themselves from re-infection with another strain, or another STD infection.

- Countries or states that have laws on deliberate infections have a low success rate of prosecutions, since ultimately it's a he said/she said scenario (or a he said/he said).
Yet, they have clear cases where such laws have led to human rights abuses.
For example, prisoners held for biting or spitting (now known to be mainly theoretically risky, but not practically).
Cases where people did not know the law and had sex with a condom, and no HIV was transmitted. This frequently applies to newly diagnosed people who did not know the law in all states or countries.

The worst is probably relationships where there was a clear intent to blackmail from the start, and an attempt to be discreet made it unsure or unclear to witnesses what was known to either partner.
There are cases where a negative ex-partner suddenly accuses a positive partner of "non-disclosure", which can be fought in court, but it's a 30-year prison term hanging over the positive partner's head.

My advice is to be open and to scream it from the rooftops.
At least legally, the more openly HIV-poz people are, the safer we are.

Just to conclude I'd say that better medical treatments are not a good reason to make or repeal laws.
I'd always consider consent, and the intention should be to allow all people to consent fully with what they are doing.
That is also where HIV information should be clear on the risks for various behaviors and risks (currently what defines "sex" is not entirely clear everywhere).
I'd like to see true psychopaths who spread it deliberately taken out of society.
To that effect I'd also like to see condoms and clean needles in prisons.
However, I'd also like to see equal responsibility for all consenting adults.
I'd also like more discussion on safe sex in marriage, and that a wife must not be a martyr for some religion or culture when she knows her husband is philandering or poz.
I'd like religions to make condoms as legally relevant as the courts.

I'd like a way for both HIV-poz and negative people to work together.
Currently there's a huge re-appraisal of what is risky or not.
A lot of current laws are dated, and there's huge debates on the actual proof of oral sex transmission, for example.

Nevertheless, a great thread, because a lot of people are not counseled on legal issues when going for HIV tests in SA, and such threads could be a valuable resource.
The price of one mistake in some countries could be a bigger sentence than HIV itself, especially when laws concern disclosure rather than transmission.

Women and HIV criminalization in the US:

Interesting documentary titled Legalizing Stigma (Part 1, see Youtube for complete documentary).

A short history of HIV criminalization in over 30 US states.

What is upsetting is that some people who just neglect to test are spreading the virus.

And yet, people who should not be feared, and have not acted wrong at all face prosecution!

That is a grave injustice:

Considering all this very upsetting evidence on human rights abuses in the US, I've always felt that there should be a sexual consent form where both partners disclose their last test and take full responsibility before sex.

In fact, there should perhaps be a campaign to discourage sex with anyone who does not have provable references within a 6 month period.

Currently the laws are unjust, medically dated and have not served to protect anyone.
They've only persecuted people for being HIV positive (usually black, female or gay), even when they've harmed nobody.

If those laws should be fair then overthrow the whole human rights approach to HIV.

If disclosure laws should define HIV policy then everybody should know everybody's test results, and even "HIV negative people" should be dragged to police surgeons for a test on a former partner's demand, and if they lied or were wrong about being HIV negative they should also go to prison for criminal negligence.

If you have a lifestyle of "promiscuity" (gay or straight), or a history of not using condoms then that should also be disclosed to any partner.
Clearly that increases the risk of HIV.
If you say you use condoms and have a frugal sex life, and other partners witness that belief about yourself as wrong before a court, then that "evidence" should be seen as a false "disclosure" of your risk factor.
That too should carry a 30-year prison sentence.
You've disclosed the risk you potentially pose wrongly.
Whether you're even HIV poz or transmitted anything is irrelevant.
The point is: You've not fully disclosed your risk factor, and therefore you have lied and created a false risk assessment to anybody that sleeps with you.

That's another outcome to various activism.
Perhaps we should not decriminalize HIV poz people, but rather further criminalize everybody?
Is that what we want on the basis of removing sociopaths who really deliberately infect people?

Either everybody can prove they know their HIV status publicly, or it remains a private issue.
Force HIV tests by law for the whole population then.
Don't just deny rights for a tiny part of the responsible equation.
Publish the latest HIV test results of all public figures in the newspapers!
Yes, all the pastors, and ministers, cops and government people.

If so-called "HIV-negative people" lied or were negligent then send them to prison too for decades.

But of course that's not going to happen.
It won't happen in SA because HIV probably reaches to the highest echelons of power.

Ultimately HIV is not only about identified HIV poz people.
It's about society and social responsibility as a whole.

Perhaps to sum up: It is inconceivably silly to expect people to go for HIV testing and treatments when they feel this make them criminals.

Here's my 2 pence.

If you have HIV and you know you do, and then don't disclose it to the people you are sexualy active with, then you are a criminal. You have put that person's health at risk, for no other reason than your own embarassement or irresponsible ideologies.

I get it, it's embarrasing, but I don't care what your psyche feels about the situation, you got HIV, tough luck, pull yourself up by your boot straps and move on with your life.

You have a moral obligation to disclose any disease that has the potential of KILLING another human being you have sexual relations with.

The fact that this isn't law already is kind of nonsensical to me.

Now the penalties for such things, well..that's something I won't discuss cause I don't really think you should incarcerate non violent people, ever.

~Tenth

reply to post by tothetenthpower

Well I certainly have, and I guess my HIV poz status precedes me in my social scene.

Perhaps coming from an academic or activist scene at a stage made that easier and inevitable.
At a stage people who went out with me were complaining that I made it too obvious and upfront, and they were embarrassed, and for a long time it seemed that nobody wanted to be around me.
But now I see it was the right thing to do, and everybody knows, but they're mostly back.

I've got some gay books on when to disclose or not in an intimate situation, and none of them are clear enough on the legal warnings, or what people are expecting in this thread.

The counseling has mainly been about protecting your partner and yourself (from re-infection or other STDs).
It's all focused on "safe sex".

To me as openly HIV poz it seems that a lot of people don't understand that HIV negative people are often simply untested and nominally negative.
If they re-infect me, it's a far greater danger to me at the moment.

Once I thought HIV would never happen to me, but now I know that people lie or undermine their sexual behavior.

Just like the partner I've had who identifies as "bisexual".
We discussed HIV, and I asked him how many women he'd slept with since our last encounter, and he answered 7 (no men).
I said quite loudly that if he ever goes for a test that he shouldn't blame me if he tests positive, because we did nothing unsafe, and although he considers himself negative, he's actually very high risk.
I made sure my two female friends heard that too, before me and him headed out for some safe hanky-panky.

Many HIV poz people are not educated on this.
Neither are all sexually active people interested in hearing it.
What exactly is disclosure?
See my first clip, especially on the lady who worked for the US army, and how she attempted to refer to her status by urging condom use, and it was rejected by her straight male partner (who remains negative).

Sex is a risk in the age of AIDS.
Everybody should know that.

Where are the churches and state institutions?
Where are their pronouncements on what partners and couples should do?
Especially with the heterosexual epidemic in SA?
Should the Pope go to prison?

All I see is an onus on HIV poz people not only to safegaurd others, but also to disclose their STD in ways that could become very public.
Where is the onus on "negative people" to protect us and themselves?

What do people get from testing for HIV and being responsible?
A prison sentence?

What about people who just don't test, and they could infect loads of people?

Is that OK?
Where are the laws to stop them?

Originally posted by tothetenthpower
Here's my 2 pence.

If you have HIV and you know you do, and then don't disclose it to the people you are sexualy active with, then you are a criminal. You have put that person's health at risk, for no other reason than your own embarassement or irresponsible ideologies.

I get it, it's embarrasing, but I don't care what your psyche feels about the situation, you got HIV, tough luck, pull yourself up by your boot straps and move on with your life.

You have a moral obligation to disclose any disease that has the potential of KILLING another human being you have sexual relations with.

The fact that this isn't law already is kind of nonsensical to me.

Now the penalties for such things, well..that's something I won't discuss cause I don't really think you should incarcerate non violent people, ever.

~Tenth

I do agree with all of the above, people aware of their status have the moral as well as legal responsibility to inform any partner.

Now, that said, does it make the public safer? NOT MUCH. You see, if a person has the symptoms, and even if a doctor INSISTS that they be tested, they can still REFUSE it, and now you have a person that knows they have 'something' wrong, and may have a good idea what it is, but no legal responsibility to tell ANYONE.

SInce this person refuses to LEARN their status, they don't get the treatments, don't reduce their viral load, and are MUCH more a threat than the person that knows their status, takes the treatments, but doesn't tell their partners. It is well-known that the treatments commonly reduce the viral loads to unmeasurable levals when successful and at that level it is virtually impossible to transmit it to others. The person without treatment - may have viral counts in the tens and hundreds of thousands per mL and will easily transmit it - but since they refuse the testing, they have no legal obligation, and there is no legal recourse if they fail to tell you they 'think' they have it.

I note a recent case about a woman that had been repeatedly asked by her doctors to allow the test, and repeatedly refused even with obvious symptoms....but after another hospitalization, they performed it without her consent, and she was infected. Now she is suing the doctor because she was exercizing her 'right' to NOT know. Legally she is correct in everything, and will probably win the lawsuit. Morally??? She is as GUILTY as the person that does know, and refuses to share, and if she exposed anyone, would have EASILY infected them as she was under NO treatment to reduce the amount of virus in her blood. THe person that gets infected by her? No recourse, their bad luck.

Link to case:
Woman sues after doctor tests her without consent

A law about sexual parner disclosure would be more suited to address this problem than aiming at 'known' HIV carriers, as this excludes people that may well be more dangerous, but currently protected by law.

FYI hepatitis C is just as deadly, and just as hard to treat, and if spilled or left on a surface in a drop of blood, will live and can infect for over two weeks. HIV is killed by saliva, sweat, and exposure to air and dies outside the body in a matter of seconds. It is a scary disease, but some on here act like it can jump across a room. Just remember there are other dangers out there that can be as destructive and deadly...and not 'knowing' does not reduce your moral responsibility.

reply to post by halfoldman


Well firstly, kudos to you for being brave enough to discuss it in public and have a positive outlook.

I myself am a gay man who use to get tested once a year before I got married and stopped having sex for just that purpose. Even then HIV tests were in their infancy at that point.

I do agree that it's a matter of education and there isn't much you can do about those who refuse to get educated or tested.

The gay community are far more likely to get tested which is why year after year we see more positive cases from the LGBT community than the hetero one.

It's not a black and white issue for sure. My whole point is we need to begin somewhere, and that needs to be educational programs regarding HIV and testing as well as making those responsible for their behavior/disclosure when they are aware they have it.

~Tenth

reply to post by tothetenthpower

Thanks for that response.


At least from a view from SA I'd think it's a bit premature not to call it a black/white or "racial" issue too.

Of course anyone is at risk in a clinical sense, but in a historical and cultural sense there's a feeling in post-colonial countries that apartheid, colonialism and general exploitation have contributed to high HIV rates in Africa.

I suppose still today in the US the gay and African American communities are disproportionally affected.

However to histoicize HIV is not to simply accept this as an "essential order", but to rather look at why there's still so much indifference regarding certain groups from power, and such an unwillingness to stop the vast prison populations in some groups, or even to just promote safe sex in prisons.

Clearly some laws do more harm than good, just like criminalizing HIV poz people for not facilitating their disclosures.

reply to post by halfoldman


I meant black and white, as in very cut and dry, not actually racial, but that's a really good point too.

When the Pope goes to africa and tells folks to not use condoms cause it will make AIDS worse, well I have admit he should be reprimanted and that sort of thinking should be shunned.

But it's a tought issue and I appreciate the different perspectives. The intent is never to 'criminalize' it's to protect right?

But protection often comes with a removal of one's personal liberty.

~Tenth

reply to post by tothetenthpower

Well the intent should be to protect.

However laws that were made during a period of confusion, unclear medical facts and hysteria probably don't do that today.

On the other hand we know there are laws against clean needles or condoms in prisons that clearly intend to expose rather than to protect vulnerable groups.
So we expect the same power that exposes to protect us from HIV?
Not that I think they purposefully have plans to spread infection, but they have overriding "moral policies" where they just don't care how many might get infected.
Is that right?

Protect yourself - everybody should know how.

reply to post by tothetenthpower

When the Pope goes to africa and tells folks to not use condoms cause it will make AIDS worse, well I have admit he should be reprimanted and that sort of thinking should be shunned.

The Pope should be reprimanded, but those who follow his teaching should be jailed (as if prisons somehow contain rather than facilitate HIV)?

I mean who is being protected?

What happened to personal responsibility for the self?

Not a single HIV poz person can save people from their own choices.

reply to post by tothetenthpower


It is a tough issue, and a lot more than just embarrassment. Those that are HIV positive risk a lot to tell people, they risk losing friends (a lot of people have a lot of ideas about having HIV that are frankly warped); they risk losing family for the same and that hurts; they risk losing employment (there is the factor of very expensive drugs that affect all the members of a small group policy) and risk not finding employment (how do you take a drug test and NOT expose the HIV meds that made it go wacky); risk being judged as not suitable for long-term loans like mortgages; biased treatment for any other condition and illness (try getting any treatment for an insect bite or injury to any personal area, and you will endure a lot of sex questions before you convince the doctor to listen to your story about the spider because you just have to be making excuses to cover up something).

You don't have to tell any of those people above by law, but I told them all and have dealt with all of the above. Amazing enough, the outcome was not as bad as I thought (in some cases), but keeping the job was the hardest. I've found there are surprisingly knowledgable people - and shockingly stupid people. These are reasons not to wear a sign on your chest, just to make someone happy that thinks if someone with HIV is near them they might get their cooties or something, therefore they have the right to know about it.

After all, this is not the 90's - someone with HIV that has the treatments will live, and will continue to deal with everything that everyone else on this earth deals with. Life is NOT over, not by a long shot. Why should I tell everyone? Doctors and caregivers, and emergency personnel should be protecting me from them as well as protecting themselves from me. Coworkers use universal precautions for the same reasons. Unless you plan to have sex with someone, then it is nobody's business except for who you wish to tell. And the law AGREES with that.

Now a little scenario. Meet an old love from decades ago that you wish you had stayed with? And you scare them by sharing everything, and they tell everybody? You know your exposure happened years after, but have no way to convince her of that....The moral person has to make the choice to walk away and never explain why, because the survivalist says don't tell anyone. The caring person should also be saying walk away and don't hurt anyone. I think you will find there are more that do THAT rather than as suggested by some, that people infected just want to spread it around. HIV does not discriminate by moral persuasion. There are good people and bad people that have this disease, Some will tell, and some will walk away. Either of those are a right choice. And a few will do neither and make the wrong choice.

There are those that get bitter and angry...and a lot more that buck up and keep fighting, and try to live life while trying to do the right thing.

The laws must balance the risks and threats to people because of wrong choices, with protecting those that make the right choices and are just trying to get thru life. It's a hard balance.

I've thought a lot about this thread since my last visit, and some of the insightful comments.

Particularly reviewing the issue in the OP article about a condom that accidentally broke, I do think it is a moral duty of the HIV positive partner to disclose, especially in case something goes wrong with "protection".
When this happens surely the negative partner could benefit from prophylactic treatments.

I'm just not sure it can be legislated.
It does venture into bedroom politics.
Those politics between two consenting people (who both consent to sex and therefore certain risks) seem awfully dodgy to base virtual life-sentences on.

Non-disclosure and deliberate infections are perhaps two different issues.

It also reminds me how behind the times we can be in SA.
There's little information on how low a viral load can be with current treatments that make even unsafe exposure unlikely to transmit the virus.
Here, treatments are in any case only started fairly late into the viral progression.

We have a much larger HIV positive population (most of which is not on medications), and perhaps massages make it more clear that anyone is at risk than other countries.

HIV only became widespread in SA in the 1990s, when it was treatable in many other countries.
In the struggle by activist groups against the government's denialism that followed, HIV prevention and treatment was seen from a human rights approach (especially after the murder of Gugu Dlamini, who was murdered after disclosing her HIV positive status on radio in 1998).



Helen Zille, the leader of the Democratic Alliance party and mayor of Cape Town, caused quite a stir in January this year when she argued for special laws criminalizing deliberate HIV infections.
Some international authors she cited (like Helen Epstein) later distanced themselves from her remarks, as it appears Zille misunderstood the work on concurrent relationships in southern Africa with "deliberate infections".
Perhaps realizing that she was out of her depth with her populism, the issue has not resurfaced.

However there was a case under existing laws where three women accused a man of deliberate infections.
His guilt can be easy to prove, since the first woman took him to hospital where she learnt he had HIV/AIDS, and he did not disclose nor use protection with the other women (who were indeed infected).

In that case I'd say there should be legal consequences.
beta.mnet.co.za...

There are still people in SA who believe HIV doesn't exist, and who think they are "cured" by some religious or cultural practice.
Denialism has not completely gone away.
That's another sticky subject in populations that don't necessarily subscribe to Western science.
Would it impede on the rights of religious freedom to jail somebody for infecting others if that person believes he cannot have HIV due to his religion?
Even some mega-churches in SA claim to cure people from HIV - shouldn't that then also be illegal, because it encourages non-disclosure?
That could result in constitutional clashes between religious freedoms and prospective laws.

We need to stop deliberate infections.
Like myself, all the people who tested positive as adults were once HIV negative.
I do suspect that the person who infected me did it deliberately.
But I also could have done more to protect myself.
I can understand the fears of negative people.

However, in the cultural context of SA, one cannot have a law that potentially and seriously criminalizes 5-6 million people.
Imagine the legal headache of "he said/she said" cases, and who infected whom, let alone who disclosed what to whom in one of our 11 official languages.
We just wouldn't have the resources.

Deliberate infections remain a crime under other laws (and rightfully so), but it's only easy to prove with serial offenders.

We should rather encourage safe sex for all, and fight stigma in a way that encourages voluntary disclosure.