Two interesting cases are working their way through the system in Ohio.
Robert Murdock was charged with murder in Ohio for not telling his mistress, Kimberly Klempner, he was HIV positive. The indictment alleges that Murdock knew he was HIV +positive but failed to tell his mistress. The indictment continued they had unprotected sex during their five year relationship. Klempner died from AIDS. A police report stated that after Murdock’s wife learned of the affair, she told Klempner her husband was HIV positive. That must have been an awkward conversation.
Murdock was also charged with felonious assault.
Next, Orlando Batista was indicted for felonious assault – for having sex with his girlfriend without telling her he was HIV positive. He admitted in court to having infected at least two other women, one of whom passed the virus to her child.
Batistsa was convicted and sentenced to eight years in prison.
He appealed staying that the law requiring him to disclose his HIV status violated his rights to equal protection and free speech. His lawyer argued before the Ohio Supreme Court.
“There’s no doubt that Mr. Batista’s behavior in this case was reprehensible. But this case is bigger than him. This case is about all HIV positive people in Ohio. It’s about the burden that is passed onto his victims that requires them, for the rest of their lives, to disclose their HIV status to potential sexual partners.”
When your lawyer is arguing your behavior is reprehensible, that’s a hint you have an uphill battle.
The National Center for HIV Law and Policy argued that unfairly singling out people HIV for draconian punishment, but not people with more prevalent diseases like HPV or hepatitis C, constitutes unfair discrimination.
The Ohio Attorney General countered:
“The General Assembly was very clearly concerned with informing potential sexual partners. That is an informed-consent aspect. And it is necessary in order to promote personal autonomy and personal agency. It is a recognition that when you have sexual conduct, there are two parties to that conduct, and the other person has a right to know and has a right to be party to the decision to engage in the sexual conduct.”
As of 2015, 59 Ohio residents were convicted of HIV related prosecutions over the prior decade.
Each state varies in how it criminalizes transmission of HIV. More than 30 states have prosecuted individuals. A person diagnosed with HIV who infects another while engaging in sexual intercourse is, in many jurisdictions, committing a crime. A person donating HIV-infected organs, tissues, and blood can be prosecuted for transmitting the virus. Spitting or transmitting HIV-infected bodily fluids is a criminal offense in some states, particularly if the target is a prison guard. Some states treat the transmission of HIV, depending upon a variety of factors, as a felony and others as a misdemeanor.
In 2012, the HIV Medical Association and the Infectious Disease Society of America called for repeal of such statutes.
“It argued that such laws contribute to stigmatization and discrimination that inhibit diagnosis and result in “harsh sentencing for behaviors that pose little to no risk of HIV transmission.” It advised that “All state and federal policies, laws and regulations … be based on scientifically accurate information regarding HIV transmission routes and risk.”
A federal bill was proposed which called for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It died in subcommittee in 2011. It was reintroduced again in 2013, where it had the same fate.
To see if criminal prosecution based on HIV status is enacted in your state, click here.
What do you think?
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I have no problem with criminalizing such behavior in anyone who knows he or she has a communicable disease of any kind–from a cold to HIV and everything in between. It’s obviously criminal assault since it’s clearly impossible for any consent between the two parties to be of an informed nature.
Singling out those with HIV but ignoring the rest is wrong, not because infections should generally go unannounced, but because all need to be disclosed.
The sexual partner has a right to know if the infected partner knows they are HIV positive. However, if making failure to disclose HIV positive status to a sexual partner a criminal offense, then it should apply to disclosing to medical professionals as well. Yes, we apply universal precautions to ALL patients equally, but so should sexual partners if they want to be as safe as possible. Therefore if we’re going to criminalize it, it must apply to any party being exposed to an infected person’s bodily fluids.
In essence from a legal standpoint this is considered an assault resulting in a worst case scenario with the result of death. That could be considered a homicide. Is this different that poisoning someone slowly with arsenic over time. Death is not immediate. If the victim doesn’t know then they will not seek treatment.
What happens when at some point prior to death when it is disclosed and a victim doesn’t die but must be on medications for life. In this case it is like an assault that leaves a person permanently disabled.
Therefore the criminalization of these types of assaults are appropriate, and not that far afield from other types of assaults.
The only reason that this is even controversial is that HIV is still viewed politically as a lifestyle disease and that there would be discrimination against the perpetrator. Coddling the perpetrator is not the appropriate response, nor is politicizing a disease.
Had HIV not been politicized in the 1980s it is likely that prior means of contact tracing of communicable disease would have lead to less spread of the disease. That would have led to less suffering and fewer victims.
Unfortunately the prevalence of STDs is much higher today than 25 years ago – Genital warts are rampant. The other problem is that available medications that may be curative, prophylactic, or capable of reducing viral loads to “undetectabe” , are often unaffordable or unavailable.
Moral of the story? If you’re screwing the unknown, you MUST use a condom or abstain. STDs today don’t get cured with a shot of PCN, but linger as parasites ad infinitum.
A friend who is disease free and dating, asked my advice how to specifically avoid these three viruses, and how to approach the topic on a date. I suggested he get his own viral titers, and present these lab results to a prospective partner, and request she does the same. And double glove in the meantime. Thank you.
And what expectation does a married person have (legally) that their spouse be monogamous? There seems to be no protection or recourse for a married person who gets an STD from their cheating spouse, apparently because no one has the right to expect monogamy even inside a marriage. We live in a basically amoral (or gutless) society which chooses to take no stand because there is a very vocal (increasingly narcissistic) and growing faction who believe that the notion of right and wrong unfairly limits their freedoms regardless of whether their behaviors cause pain and suffering, mental, physical or emotional to those around them. A cheating spouse is committing rape by forcing the non-consensual sex of their spouse with all of their extra-marital partners.
Go Stacey. We risk our lives every day. Every patient must be treated as if they have a life threating illness. Irresponsible people are a loaded gun. Please respect those who have dedicated themselves to help care for you.