Do you have any idea what the chances are of contracting HIV when appropriate measures (including but not limited to condom use) are taken?
Perhaps you should leave the choice of whether or not one should be allowed to engage in informed, consensual sex to the people participating, rather than condemning a large segment of the population to legally enforced celibacy.
I have something to add to this...I do think criminalization is the wrong wroad to take...or at the very least, it should be accompanied by certain supporting factors that would imply deliberate intent to infect or gross negligence with the person at risk having reasonable ground to think the person is HIV negative.
The reason I'm hedging a simple mandate to make all HIV poz people responsible for disclosing is that many sexual encounters (among gay males particularly) are casual or anonymous. I've read blogs where people have given examples of them meeting up with others in bathhouses where they go out of their way to serosort and have the opportunity to have unprotected sex with someone in the same boat. As they have described, many people are non-communicative in the first place and by their actions and allowances they imply their willingness to "go there" without having to SAY to the other person..."Um...I'm poz". You have to understand how this can be difficult to bring up especially as you are naturally having some foreplay at least before you even say much.
Now it's very common that most (and presuming they are uninfected) ask "do you have a condom?", or they simply pull it out and use it. Simple, self-protective and lets the other person know where they stand and they can choose to back out gracefully...make up a lie they don't care for anal sex...whatever.
Now there are cases where people have said that they run into ones that start off with them and eventually go into unprotected sex, even if it's just for a few strokes and then ask directly "are you clean"? As myself and others had this kind of story presented to us, I had to agree that I don't think is fair. First of all the question is horribly stigmatizing..yeah...buddy...you're trying to force the person to say "Oh sorry...yes I'm very UNCLEAN. Leprosy unclean..my mistake...I can understand how meeting an anonymous stranger in a BATHHOUSE would lead me to believe that a person would immediately play bareback and without a word suggest that he's negative.
Now this went round and round in discussion with a couple totally adamant that it's still ONLY the person infected responsible for warning the other 'victim', but most thought this was ridiculous. Many poz people go to the bathhouse to play and they pull this select and sort all of the time and most of the time it works fine...the fool described above is an idiot, but because of the law, he'd be an incredibly DANGEROUS idiot because he could legally charge the person and his own behaviour and risk taking is totally excused!
Now let me hasten to add that in the case of meeting people out in a bar, dating them ,etc...it's a lot harder to support this as being responsible enough. There SHOULD be disclosure before it goes too far. I think "murder" charges are ridiculously extreme however. HIV is not a truly fatal disease anymore, and most people are now expected to live a nominal life span with medication.
One other problem I forgot that was discussed is sometimes drinking or drugs were involved that caused other issues. While it's easy to sit back and judge someone who uses meth or GHB, ecstasy...once in a while, it's simply a reality that many people use substances like this to enhance sex. Hell, people have been doing the same with alcohol as well, and it's also responsible for slip ups. Many times someone who would normally be careful and say outright what their status is, find themselves a little too fucked up and all of sudden the physical act got carried away and things began before they could focus enough to say "um...wait a minute".
These are very real problems, and they need a solution that is more complex and comprehensive than simply to shift the blame and punishment 100% to the infected person. As many AIDS organizations attest, it's also a huge impediment to people getting tested and stigmatizing the disease further. Fuck, one could argue that someone with a flu that enters a Senior's Citizens home and thereby passes on an epidemic throughout is guilty of the manslaughter of 4 residents who died of influenza. It's fucking ridiculous, but it's still the same basic concept.
On top of this, it's now been proven that people on meds who are undetectable are greatly reduced regarding risk of transmission.
As you can see by this article, it's even estimated at a less then 1 in 100,000 chance:
http://www.aidsmap.com/en/news/CEFD90F2 ... 62AC9D.asp
Swiss court accepts that criminal HIV exposure is only 'hypothetical' on successful treatment, quashes conviction (updated) In the first ruling of its kind in the world, the Geneva Court of Justice has quashed an 18-month prison sentence given to a 34-year-old HIV-positive African migrant who was convicted of HIV exposure by a lower court in December 2008, after accepting expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000.
Note: This is a revised version, updated on March 10th, clarifying information included in the first edition.
The case began in Lausanne in March 2006. The man, originally from the Democratic Republic of the Congo, was convicted of having unprotected sex without disclosing his HIV status to a female complainant. Although the woman was not infected, Article 231 of the Swiss Penal Code allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. Individuals can also be prosecuted under Article 122, for “an attempt to engender grievous bodily harm”.
The man was also found guilty of several other crimes, including theft, fraud and sexual harassment, and was sentenced to three years in prison. A February 2007 appeal reduced this to 28 months.
A second complaint last year led to the man standing trial again, in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk.
Although the man's lawyer, Nicole Riedle, had entered the statement by the Swiss Federal Commission for HIV/AIDS into evidence, and Geneva's deputy public prosecutor, Yves Bertossa, had wanted to suspend the hearing in order to consult with the Commission, the lower Geneva court declined to accept any further evidence and he was sentenced to 18 months in prison in December 2008.
Late last month, Mr Bertossa told the Geneva Court of Justice that he was persuaded by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000 and that – under the circumstances – he wanted to drop the charges.
On Monday, the Geneva Court of Justice acquitted the man, who was freed after spending almost three months in prison.
Significantly, it was Geneva’s deputy public prosecutor, Yves Bertossa, who called for the appeal. He told Le Temps that despite the fact that there is still some debate regarding the residual risks of transmission in people on successful treatment this should not influence justice: "One shouldn't convict people for hypothetical risks,” he said.
Professor Hirschel told aidsmap that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues were motivated to issue their January 2008 statement.
Deborah Glejser of Swiss civil society organisation, Groupe SIDA Geneve, told aidsmap that although the law allows for prosecutions for unprotected sex even when disclosure has taken place, in practice, prosecutions for HIV exposure usually only take place when there is no disclosure, and that a suspended sentence (for a first offence with no aggravating circumstance) is the norm.
Switzerland is made up of 26 cantons, of which Geneva is considered to be the most “liberal”, according to Ms. Glejser. However, since there is no real centralised information about cases, it is not easy to give a comprehensive picture of the pattern of prosecutions and sentences across Switzerland.
She added that Monday’s ruling suggests that, in Switzerland, effectively treated HIV-positive individuals should no longer be prosecuted for having unprotected sex. Having already been contacted by advocates from around the world, she hoped that this ruling will have consequences for other jurisdictions that have HIV exposure laws.
Last May, a five member US Court of Appeals for the Armed Forces panel discussed the effect of treatment on transmission following the appeal of an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. Although the majority did not agree, and did not allow the accused soldier’s guilty plea to be set aside, two members of the panel found the medical expert’s testimony – that it was highly unlikely that the soldier could have infected either women because of his low viral load – valid enough to question HIV exposure laws.
And last July, a Canadian court explored the Swiss statement following a submission from Clato Mabior’s defence team that, at the time he had unprotected sex with six women without disclosing his HIV status to them, he did not believe he was infectious. Although expert testimony concluded that Mr Mabior may have been uninfectious for some of the time, this was not enough to convince the judge, who noted that neither the CDC nor WHO/UNAIDS agreed with the Swiss, and that the crimes of which Mr Mabior was accused took place prior to there being any public statement on the effect of treatment on transmission.
Following Monday’s ruling, however, Geneva’s deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: “There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws.”
Thomas Lyssy from the Swiss AIDS Federation, told aidsmap that they were “very pleased with the judgment of the court. We certainly hope that this precedent will be followed in other Swiss cantons in future cases of a comparable nature.”
So after it's all said and done, although I was originally of the mind that the person with it should disclose, I really feel it should be conditional for all of the reasons listed above. It's a very grey issue. Anything that involves sexuality tends to be...
PS: For the record, unprotected sex isn't generally wise with multiple strangers ANYWAY because of the other nasties out there. Still, I can't in good conscience take away the right of people to choose bare sex. To many in that boat, it's simply doesn't matter as much as their sex life and enjoyment with it. They can take the point of view that they can't get anything more that's potentially fatal, (Syphilis can also be called this), as all other main villains are curable, and a grand majority of HIV poz people already have minor ones like HPV, herpes, etc. So they have nothing to lose and very much to gain. Speaking from experience of having both protected and unprotected sex, (when appropriate), I can understand. It's like comparing Red wine vinegar to an aged Bordeaux. It's such a shadow of the real sexual act. It's not a minor difference in sensation..a condom is a major inhibitor of sensation, the natural feeling of warm skin compared to unyielding, unslippery fake material, and even the mental aspect of "barrier" between you and the other person sends a subliminal message that during this most intimate act, you are forcibly "separated". I understand their necessity and certainly insist people who are uninfected use them religiously until they are within a closed circle of either monogamy or safe partners, but I can't blame people one bit for seeking out unprotected eventually. You think they're going to wait for the cure? It's as unrealistic as the Pope expecting people to wait until marriage.
You have to realize that most Christian "moral values" behaviour is not really about "protecting" anyone; it's about their desire to send a continual stream of messages of condemnation towards people whose existence offends them. - Darth Wong alias Mike Wong
"There is nothing wrong with being ignorant. However, there is something very wrong with not choosing to exchange ignorance for knowledge when the opportunity presents itself."