Wednesday, January 27, 2016

Injections, Infections, Condoms, and Care: Thoughts on Negligence and HIV Exposure

Many states have criminal statutes specifically criminalizing the transmission of the Human Immunodeficiency Virus (HIV). This Note argues that tort, rather than criminal, law should regulate the wrongful transmission of HIV/AIDS. The Note then examines the applicability of various tort doctrines to the peculiar problems presented by this particularly notorious plague, including assumption of the risk and disclosures.

In his groundbreaking work on the Acquired Immune Deficiency Syndrome (AIDS) epidemic’s early days, journalist Randy Shilts recounts the chilling story of the man believed1 by many to be the epidemic’s North American “Patient Zero”: Ga¨etan Dugas, an Air Canada flight attendant.2 Dugas, whose work provided him with free air travel across the globe, gained a reputation for peculiar post-coital activity While turning up the lights, Dugas pointed out lesions on his body and told his partners, “I’ve got gay cancer. . . . I’m going to die and so are you.”3 Dugas’s behavior—the careless, shameless, and intentional spread of a frightful, then-fatal disease—represented an unsavory stereotype for homosexuals and terrified heterosexual, polite society.

In the years that followed, understandings of this new “gay cancer” evolved. Scientists across the nation renamed the disease Acquired Immune Deficiency Syndrome (AIDS) and discovered its methods of progression and transmission. Fear, however, remained the epidemic’s signature trait. Fear was the foundation for wild-eyed calls for quarantine,4 widespread discrimination against those living with AIDS (and those who have died because of it),5 and laws criminalizing transmission and exposure to HIV.

More than half of U.S. states have laws criminalizing transmission of HIV. Generally, the laws require HIV-positive individuals to disclose that they are HIV-positive to their sexual partner prior to sexual activity. Iowa’s statute takes the somewhat unusual construction of illegalizing HIV exposure but naming disclosure as an affirmative defense.6 However, not all of the statutes require disclosure. Alabama’s, for example, apparently regards disclosure as irrelevant. It facially disallows any sexual contact leading to infection.7 Regardless of their specific constructions, these statutes impose criminal sanctions on HIV-positive individuals for the perceived risk presented by what is called their “serostatus”—the quality of being either HIV-positive or HIV-negative.

The application of such criminal statutes results in convictions like that of Nick Rhoades, an Iowa man whose viral load was reduced through avid treatment to undetectable levels, which greatly reduced his chances of transmitting the virus.8 Rhoades—who used a condom during the incident in question—was sentenced to twenty-five years in prison on the basis of a single sexual encounter because he did not disclose his HIV-positive status to his sexual partner.9 Though Rhoades did not infect his sexual partner, he was still convicted.10 The Iowa statute specifically notes that actual transmission is not required for criminal sanctions; merely the possibility that transmission could occur is sufficient.11 On the other hand, cases like Nushawn Williams’s—who infected more than ten sexual partners, allegedly with the intention of transmitting the HIV virus12—lead to hysteria and support for criminal statutes regarding HIV exposure.13 In reality, intentional infections are exceedingly rare, though when they occur (or allegedly occur), they are widely and notoriously reported,14 further warping public understanding of the issue.

This Note argues that criminal sanctions, by virtue of the societal reproof inhering in them and their rigid application in comparison to tort liability, are an inappropriate response to the problem of HIV exposure…

Full PDF article at:

By:  Dustin J. Lee*
* J.D. Candidate, Cornell Law School, 2016

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