Ex GF and ethical dilemma

[Guest]

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By April 1998, 28 states had passed laws making it a crime for someone with HIV to knowingly expose someone else to the infection through sexual or other kinds of contact. The states are: Alabama, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, Washington (State Laws 1998). Some of these states, such as Missouri, have had criminal transmission laws on the books for more than ten years. In 1997, however, several states enacted tougher penalties for knowingly infecting or exposing people to the virus. Florida, New Jersey, and Missouri raised penalties for not properly notifying one's partners about HIV positivity (up to twenty-five years in Florida). Washington state also raised the stakes for intentional exposure or transmission (HIV/AIDS and the States 1997). In April 1998, the Iowa legislature for the first time approved a bill making in a felony for a person who tests positive with HIV virus to engage in "intimate contact" with other persons. A person who was convicted of such activity could receive a prison sentence of up to 25 years (Iowa Makes 1998).(1)

 

>>>>>Iowa does have a case of one man getting 25yrs. for infecting a non-suspecting partner - HT <<<

 

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About a year and a half after this encounter, Sykes met Jamie Walker, who was sixteen years old. Sykes and Walker had sex four times between October of 1994 and September of 1995. Sykes never told her that he was HIV-positive. Before their first sexual encounter, Walker asked Sykes whether he had a condom. He told her that he did not. Walker testified that she never mentioned the subject of condoms after that. To date, Walker has not tested HIV-positive.

In October of 1995, two and a half years after his last level II intervention, Sykes met nineteen-year-old Jana Brent. By Thanksgiving, Brent had moved in with Sykes and they began a sexual relationship. Brent testified that they had sex three to four times a week between November of 1995 and April of 1996, the time period in which they lived together. Brent testified that Sykes never told her that he was HIV-positive. She also stated that while they sometimes used a condom when having sex, "more often than not" they did not. Brent discovered that she had contracted HIV in the summer of 1996.

 

B.

 

Charles Mahan tested positive for HIV in June of 1990. Shirley Wells, an official with the Joplin City Health Department and the Missouri Department of Health, conducted a level II counseling session with Mahan on July 23, 1992. Wells testified that her method of counseling was to "engage the individual in discussion and on occasion have them critique what I?ve said in their own words so that I can be sure that they do understand the mode of transmission [and] Missouri laws . . ." Using this method of counseling, Wells and Mahan "discussed in detail" how HIV is transmitted to others. Wells stated that Mahan "fully understood the modes of transmission."

Wells also emphasized that to minimize the risk of infection, Mahan should notify sexual partners of his HIV-positive status and should use condoms when engaging in sexual acts. Wells demonstrated proper condom usage and discussed with Mahan alternative sexual behaviors that did not subject others to the risk of infection. Wells also testified that she read section 191.677 to Mahan, gave him a copy of the statute, and asked him whether he had any questions regarding Missouri law. At the end of their session, Mahan signed a verification form in which he acknowledged that he was HIV positive and that he had undergone level II counseling that day with Wells.

That same month, Mahan met Bruce Stuebner. Stuebner and Mahan had anal sex ten to twenty times over the course of the following eleven months without ever using a condom. Before they had engaged in any sexual acts, Stuebner asked Mahan if he was HIV-positive. Mahan responded that he was not. Stuebner contacted authorities after he learned in July of 1995 that he had contracted HIV.

 

C.

 

An information charged Sean Sykes with two counts of creating a grave and unjustifiable risk of HIV infection under section 191.677, RSMo. A jury convicted him and recommended a sentence of five years imprisonment for each count. The trial court sentenced him to two consecutive five-year terms of imprisonment.

Charles Mahan was charged by indictment with one count of creating a grave and unjustifiable risk of HIV infection under section 191.677, RSMo. A jury found him guilty as well and recommended a five-year prison term. The trial court sentenced him to five years imprisonment. Both Sykes and Mahan appeal from their convictions and sentences. They allege that their respective trial courts erred in overruling their motions to dismiss on grounds of unconstitutionality and in submitting the charges to the jury over their objections. We have combined the appeals owing to the similarity of their arguments.

 

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I'm not making any arguments here, but just showing this issue has, and is, being addressed in the courts. And not just in the US courts, but courts around the world.

 

HT

[Zorro]

HT

 

Nice piece of research.

[Guest]

I've gotta admit that this issue of criminalizing HIV is interesting to me.

 

The first link you provided was a presentation delivered to a symposium in new york by a professor of politics type. The last paragraph follows:

 

The thorniest problems involve those cases in which there is consent to sexual contact, knowledge of HIV status by one of the partners without the other partner's being informed, with no additional known or controllable risk factors. Should cases like these be prosecuted? Presumably the vast majority of HIV transmissions in the U.S. were the result of such activities. Obviously, except in a very small number of cases, these were not prosecuted. Even the most ardent supporters of criminalization would probably have difficulty accepting that they should have been. The problem is in distinguishing the irresponsible or insensitive from the criminal. Once one embarks down the paths of criminal prosecution the momentum might be difficult to control or stop. Decisions to prosecute, I would argue, should be made only in the most clear-cut or obvious cases. Unfortunately, my reading of the trends is that states are moving farther and farther down the road of using criminal prosecutions as a kind of "solution" to the public health crisis that is HIV. Moreover, the opposition to such moves no longer seems as powerful as it once was.

- Thomas Carlson Shevory

 

 

From your second link:

 

Now, however, a number of cases have arisen where both partners agreed to sex but one partner did not know that the other was HIV positive. Should these cases now be brought under criminal jurisdiction?

...

 

There are profound ethical problems involved too. By contributing to the perception that HIV positive people are potential criminals, laws also could increase the burden of stigma HIV positive people often already bear from society and may even encourage human rights violations against people living with the virus.

 

Some of the states in the US have long prison sentences for hiv +s, the 25 year sentence mentioned by HT is one serious fucking example!

 

OTOH, a large number of US states have not passed any criminal laws. Apparently they decided to let the health workers deal with the HIV situation.

 

Thailand falls in line with the states who have not made it a crime. Seems strange that one to two million infected in LOS and safe sex education is the only means Thailand has taken to fight the spread of hiv?

[Guest]

Hi Zen,

 

>>>>>>>>>OTOH, a large number of US states have not passed any criminal laws. Apparently they decided to let the health workers deal with the HIV situation.<<<<<<<<<

 

You have to remember this was back in 1998 that 28 states had laws.That was 6+ years ago, and I'm sure other states have enacted laws since.

 

Also, don't forget the civil courts, and applicable cases that go in that direction. Just because a state is not pressing charges, does not mean there are not cases going through their court systems, by means of civil lawsuits being filed for 'wrongful death', etc.

 

HT

[Guest]

Sentence Enhancement

 

In some cases, prosecutors and judges have dealt with HIV transmission, not at the conviction phase, but during sentencing. Their successfulness of doing this has been mixed, partly depending up whether a state has statutory provision allowing for such an enhancement to take place. In Maryland, for example, a trial judge took Jose Morales' HIV positivity into account to "enhance" his 25 year sentence for sexual assaults on a 14 year old girl. The case was unusual because Morales was, at the time of the assaults, unaware of his infection. Indiana and Minnesota are both states in which HIV positivity can be taken into account in sex crime prosecutions, but in those states it is required for the state to demonstrate that the defendant had knowledge of his status. In Maryland, however, the Appeals court determined that the trial judge had "virtually boundless discretion" in determining what considerations could be taken into account in sentencing a defendant, and they thus upheld the sentence (Maryland Appeals Court, 1998).

 

 

 

A Texas appeals court has made what amounted to a similar affirmation. In Najera v. State of Texas (1998), the defendant was found guilty of sexually assaulting a fifteen year old boy. Here the fact that Najera knew that he was HIV positive was taken into account as an aggravating factor in his ten year prison sentence. The jury concluded that Jose Fonseca Najera's "use of his sexual organ and bodily fluid his penis constituted an 'intentional and knowing use and exhibit of a deadly weapon' toward the victims" (Texas Appeals Court Affirms Sex Crime 1998, 7) The appeals court agreed.

 

 

>>>>>>A Tennessee court made a similar finding in Tennessee v. Pipkin (1998). Winford Lee Pipkin was sentenced to 105 years in prison upon being convicted of "especially aggravated kidnapping" and five counts of child rape. Pipkin's attorney objected that his sentence was "enhanced" on the rape charges, **even though he did not know of his positive HIV status until the day before he was sentenced.*** The state Court of Criminal Appeals ruled that the HIV status was appropriate to consider as a factor in sentence "enhancement" along with other factors which had been taken into account.<<<<<<<

 

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Now *that*, I disagree with. If you unknowingly have the disease, then how can you be held responsible for transmitting it???? That's crazy. ::

 

HT

[Guest]

>>>>Thailand falls in line with the states who have not made it a crime. Seems strange that one to two million infected in LOS and safe sex education is the only means Thailand has taken to fight the spread of hiv? <<<<

 

 

thailand has been taken off the list of countries where a catastrophy is looming. that rate of newly infected has come down tremendously, mainly due to the very open discussion of AIDS in the thai society. thailand has an exemplary program of treating patients with free antiretrovirals. basically thailand is always cited as a huge success in fighting the spread of AIDS by the WHO.

maybe not criminalising, bot open discussion is the way to go.

[pattaya127]

, why don't you offer us an alternative interpretation of the DOHR?

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Why, you brought it up. i find no relevance to it in the tell and no tell debate. i said it's an individual choice and all can be respected. Sounds pretty human and rightful to me.

 

How about you, staying on topic, why don't you answer the question i asked you. If someone had to tell you something about some girl you are/were with who is/had not telling/told you she is HIV+, though he guy knows she is, and would like one minute of your time. Do you tell the guy to shut up, even if he came to you in the most courteous manner and not pushing the info on you, though he wishes to help then not take more of your time than needed. What will you do?

[soongmak]

[color:"red"] Why, you brought it up. i find no relevance to it in the tell and no tell debate. i said it's an individual choice and all can be respected.[/color]

 

Oprah127,

 

So you find no relevance in the DOHR. Where do you find relevance then? What inspired your individual choice? Or is it all just a 'gut-feeling'. If it is, staying in the discussion is rather pointless, no? Because all we are left with is POV's and no arguments to support them. I thought this board was more intellectual than that.

 

[color:"red"] How about you, staying on topic, why don't you answer the question i asked you. [/color]

 

First, I don't find this relevant to the topic. Off course I could like you, choose not to answer your question, but I don't want to be a spoil-sport.

 

What I feel or want is not important in the issue. If I were in his shoes, what I wanted would be something entirely different then if I were in her shoes, but you are only interested in HIS position. Pretty single-minded IMO.

 

I also didn't answer your question, because I did so way before. Since you can not be bothered to read my messages before asking questions, I will indulge you with a quote from message #358538:

 

"Although I would certainly like to be informed if I were the BF, because it's good for me, doesn't mean that I don't see that it means breaching the rights of the girl, and therefore it's wrong."

 

Now why don't you indulge me, for the sake of discussion what is so wrong about my interpretation of the DOHR, instead of ridiculing me for mentioning it.

 

Also, be so kind to clarify why I am being dishonest to you in this discussion, because I am really in the dark about this one and I hate being called dishonest.

 

Thanks in advance.

[soongmak]

HT,

 

Thanks for those links. They make for interesting reading. There seems to be a sensus what is needed for criminal prosecution of someone who transmits the HIV virus through consentual sex:

 

- One has to know about their condition;

- This condition is not discussed with the sexual partner.

- high-risk sexual behaviour.

 

What constitutes high-risk sexual behaviour is less clear-cut: Is sex in itself enough, or is sex without protection needed in case to prosecute. Most cases seem to indicate the latter, probably because in such cases the risk of transmission and thus the number of transmissions are higher.

 

What is also clear is how complex this material is. There is a lot room for speculation just like we did here.

 

For instance, is imposing laws helpful or harmful to public health: [color:"red"] "Under the proposed Criminal Law Amendment Bill in Zimbabwe, HIV positive people are only liable if they know they are infected. If prosecutions under these laws became widespread, there would be clear advantage in remaining ignorant of one's HIV status." [/color] That off course would be bad.

 

There's also an interesting mark regarding privacy and confidentiality:

 

[color:"red"] "Questions of confidentiality have, of course, been important to HIV discourse from the beginning. But courts have been generally unsympathetic to honoring confidentiality claims in criminal cases. In this case, the court rejected the challenge via application of a simple balancing test. The "state's interest in prosecuting [the] defendant for his violation of [the criminal statute] outweighed defendant's interest in maintaining the confidentiality of his test results". [/color]

 

This supports my notion that endangering a person's life outweighs a persons'right to privacy, although I maintain my POV that you have to be absolutely sure that the other person faces a life threat to breach the girls'privacy. Could you say that would be still the case if they used condoms religiously? I think relevant information is missing. This also does not address the issue who should disclose that information.

 

Another interesting remark re privacy:

 

[color:"red"] "The privacy challenge this time focused on the issue of testing for HIV infection. Like many states, Missouri's confidentiality laws prevent disclosure of test results except to certain public health employees. But while prosecutors are not given explicit access to the test results under the law, there is an exception that non public health employees outside of the Health Department who have a "need to know" in the performance of their public duties are also allowed access to test results." [/color]

 

The question stays, who should be the one disclosing the information? For me, that would be a professional working for a public health service.

 

Cheers,

 

soongmak

[Guest]

Hi Fly,

 

>>>>>maybe not criminalising, bot open discussion is the way to go.<<<<<

 

Sure open discussion is the way to go. But if that were a reality, then criminalization, would not be an issue. Criminalization only becomes nessessary, because of the *lack* of communication. Many persons HIV+, are not communicating to partners, of that reality........thus the crux of the problem.

 

100's of thousands, if not millions, have/are dying.......due to non-disclosure.

 

Do we, as a society let this go on, unchecked?

 

Do we let a knowingly infected girl/man be able to walk the streets, infecting anyone at will, with an incurable disease, under any circumstances?

 

God know's, it is a very complicated issue. Mostly comes down to the fact of protecting the infected, as opposed to the risk upon the general populus. Putting a 'scarlet letter' on every person determined to be infected, would save millions of lives. I'm not advocating that at all, but it is the stark reality of things.

 

The other side, is respecting the rights and freedoms, of individuals, regardless of the perils of enforcing those rights, that it has upon society, as a whole.

 

A tough nut to crack, for which I have no answer. Both sides are legit, and have great wisdoms. But in the end, society at large, will take whatever steps nessessary to protect themselves against an attack, be whatever it is.

 

HT