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: http://goo.gl/mHdRgQ
By: Dustin J. Lee*
* J.D. Candidate, Cornell Law School, 2016
More at: https://twitter.com/hiv insight
