To me, this is not even a close call

It seems that the Marion County, Florida DA is prosecuting Olympic equestrian team member Darren Chiacchia for putting a former lover at risk for contracting HIV. According to this story by NYT's Katie Thomas, 32 states have laws that specifically criminalize transmission of HIV or putting others at risk for HIV.

It so happens I'm just now finishing up a paper about whether and how physicians counsel their HIV+ patients about sexual risk behavior. Our assumption was that it ought to be a goal in HIV care to work with patients to reduce the chances that they will transmit HIV, as well as the chance of their becoming reinfected or acquiring other sexually transmitted infections. (Even if you're already HIV infected, you don't want to be infected again because the new strain of virus might be resistant to the medications you are taking.) A couple of the patients in our data appear to be engaging in risk behavior. Actually one of them definitely is, and he says so, but the doctor doesn't respond with any clear suggestion that he ought not to, or any suggestion about how he could reduce risk to himself and others. My co-authors and I have have considerable discussion about exactly what doctors ought to do in these circumstances, but I must say it never occurred to any of us that there should be a specific law for people with HIV, for many reasons.

I do think that people ought to take responsibility for the safety of their sexual partners, as well as themselves, and that physicians should convey that message.

However . . .

First of all, as some of the law enforcement officials Thomas interviews suggests, it was hard to prosecute people without the laws because you couldn't show malicious intent. Well exactly. The people aren't generally intending to infect anybody, they are just intending to have sex -- in Mr. Chiacchia's case, not casually but in the context of a romantic relationship. There are plenty of ways in which people in sexual encounters, and relationships, fail to take care of each other or to be fully honest. Why single out HIV in this way? It seems to me that if someone becomes HIV infected as a result of irresponsibility or dishonesty on the part of another, they can try a civil suit. And you do bear a part of the blame, if you don't even bother to ask.

Second, what we have here is a spurned lover, who as far as we know did not even become infected, whose motive for going to the Sheriff may well have been revenge. We have a he said/he said situation in which the only evidence that Mr. Chiacchia did not inform the complainant, and/or consistently practice safe sex, is the complainant's word. This seems to be opening up a good deal of room for mischief.

Pragmatically, if people know they can be at legal risk, all they have to do is not get an HIV test. If they don't know, they can't be prosecuted. That's obviously counterproductive. In fact, if you have treated HIV with suppressed viral load, you are at very low risk for transmitting the virus. That's no excuse to have unsafe sex -- you don't know for sure that your viral load is fully suppressed right now, even if it was last time you were tested, you could be reinfected, and there are other STIs out there. But still, from the standpoint of public health, what we want is for people to know their HIV status and get treatment.

Finally, if somebody really does maliciously try to infect someone with HIV, you don't need a special law - it's already plain old assault and battery. Some of these laws criminalize HIV+ people spitting, or biting people, which will not transmit HIV, by the way, so it's just a response to irrational stigma.

We'll get a lot more benefit from education, persuasion and promoting a culture of sexual responsibility than we will from punitive approaches and discriminatory laws. All these laws should be repealed.