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How to Have Sex without Breaking the Law If You Are HIV-positive

by Rich Arenschieldt

In a 2011 Harris County court case, part of the indictment involving an HIV-positive female defendant who performed oral sex on her male partner reads as follows: “…as herein alleged that she (the defendant) used her MOUTH and SALIVA, a deadly weapon, …its intended use was capable of causing death and serious bodily injury.”

This statement reflects the weak intellectual grasp that the Texas judicial system has regarding the possibility 
of HIV transmissibility—which, in this instance, is zero unless both parties in the encounter have open and bleeding sores.

Houston’s LIVE Consortium, an HIV education and advocacy group, discusses this case and others in an  educational forum entitled “How to Have Sex without Breaking the Law” on Tuesday, June 25, 6:30–8:30 p.m., at the Montrose Center, 401 Branard Street.

The legal ramifications of HIV transmission have been deliberated since the discovery of the virus. Local, state, national, and international jurisdictions have debated and enacted a variety of responses. Some have chosen not to criminalize HIV-specific transmission at all, while others have defined even the most innocuous encounters as lethal events and inflicted excessive punishments on defendants.

“The purpose of LIVE is to work towards ending the stigma associated with HIV infection,” says Mitchell Katine, openly gay attorney and LIVE board member. “This community forum will provide Harris County residents with some clarification on the rights, responsibilities, and penalties for HIV-positive and -negative individuals.”

LIVE has assembled a group of panelists to discuss various facets of this topic. Criminal defense attorney John Nechman (who is Katine’s law partner) discusses matters related to defending individuals accused of infecting others. Victims’ Rights Attorney Kim Ogg discusses representation of individuals who have been infected. Keville Ware, HIV Counseling Program Coordinator at the Montrose Center, discusses the psycho-social aspects of HIV status disclosure as it relates to dating and sexual situations. Additionally, medical experts and representatives from the Harris County District Attorney’s office have also been invited to speak.

“LIVE is hosting this event because there are those who seek to criminalize the sexual behaviors of HIV-positive individuals—something we believe fosters stigma.” Katine says. “Additionally, this criminalization [often occurs] absent proper medical information, especially with regards to transmissibility. Many outdated beliefs still persist and are utilized in Texas (and nationally) to prosecute people. The latest [example of this] involves prosecutors classifying an HIV-positive woman’s saliva as a ‘deadly weapon’—something no reputable medical professional would testify to. It is astonishing that, in 2013, we are still confronting this thinking.

“We want to foster a fair and lively › debate,” Katine continues. “Kim Ogg is the attorney who recently represented a group of women in Dallas that were all infected by the same man. It is important for us to present a completely balanced program to educate, answer questions, and have audience members contribute their experiences as well.”

How does current law in Harris County address the issue? “We seek to provide guidance from the District Attorney’s Office as to when they feel it is appropriate to prosecute someone, and when it isn’t,” Katine says. “Currently there are no HIV-specific statutes in Harris County. These types of cases are usually prosecuted under existing assault laws. In actuality, the existing law (including ‘Intent to Harm’) has handled these cases well, and addresses those criminal situations thoroughly. Consequently, I don’t see the need for HIV-specific laws here.”

Disclosure and informed consent lie at the heart of these issues. “It is important to remember that ‘consent’ is not a defense to a criminal action (i.e., informing someone of your HIV status does not absolve of you of responsibility if you infect them). Everyone needs to know this,” Katine says.

HIV status disclosure is fraught with pitfalls. “You can’t intend to do something if you don’t know you’re doing it,” Katine says. “If you are sexually active and you don’t know your status, you can’t be accused of a crime. Given that scenario, people may avoid getting tested, which, from a public health policy standpoint, is completely unacceptable. Since it has been well documented that the criminalization of HIV infection deters testing, we have to balance jurisprudence with broader public health concerns.” As legislators and public health officials debate the topic, discussion usually generates questions such as, “Should people be punished more severely as a result of their HIV status?”

“I don’t know that our courts and prosecutors are up to speed on the science of transmissibility and HIV,” Katine says. “It is highly likely that the legal system may have an emotional rather than scientific response to the issue—this is retaliatory on the part of the judicial system. I’ve heard of judges who, upon discovering that a defendant is HIV-positive and arrested for prostitution, will ‘enhance’ their sentence.

“Although someone who intends to do grievous bodily harm to someone as the result of rape or assault may warrant an additional punishment, for the purposes of this forum, we are discussing more commonplace, everyday dating and sexual situations,” Katine says.

The fluidity of HIV science and testing contribute additional complexities. What if someone gets tested before HIV antibodies are present, and they receive a negative test result? Information they provide to partners at that time is accurate as far as they know. However, just asking someone their status provides no guarantee that they are HIV-negative. Similarly, what qualifies as an “undetectable” HIV level? Some believe that they are unable to transmit HIV to others as if they have a very low viral load. However, a recently published study (AIDS. 2012 May 15;26(8):971-5) involving a large cohort of patients reports that HIV was detected in the semen of 7.6 percent of “undetectable” homosexual men who were on antiretroviral therapy.

“It is important to have a frank discussion focused on how HIV-positive individuals can express themselves sexually without breaking the law—when should people disclose, to whom, and how?” Katine says.

Rich Arenschieldt is a frequent contributor to OutSmart magazine.


Rich Arenschieldt

Rich has written for OutSmart for more than 25 years, chronicling various events impacting Houston’s queer community. His areas of interest and influence include all aspects of HIV treatment and education as well as the milieu of creative endeavors Houston affords its citizenry, including the performing, visual and fine arts. Rich loves interviewing and discovering people, be they living, or, in his capacity as a member of the Society of Professional Obituary Writers, deceased.

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