What’s wrong with this picture?

I have HIV (human immunodeficiency virus), a virus that attacks the body’s natural immune system.  If HIV is ignored by an infected person or is particularly virulent, it can lead to AIDS (acquired immunodeficiency syndrome), as it did in my case.  There is currently no cure, only treatments which lessen the severity of the disease and/or prevent transmission.  As it stands today, an infected person is infectious for the rest of his or her life and can transmit this fatal disease to others, unless precautions supported by scientific research are taken, or an uninfected person is on a prophylactic regimen known as PrEP (Pre-Exposure Prophylaxis).

Many of you will recall the story of Marvin and me.  It was 1998, so PrEP was at least another twelve years off; the only way to prevent the spread of the virus back then was by taking precautions like wearing a condom during intercourse and not sharing needles between intravenous drug users.  And of course a lot depended on what I’ll call the infected persons’ honor system — disclosing infection status.  That night:

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So when I heard, “Sí Mateo, I thought you’d never call,” I actually shivered with excitement!  I had goosebumps.  He didn’t have a car, so I navigated the wet streets of West Hollywood to pick him up, and within an hour we were sitting on my couch having one of those pointless conversations designed to make the evening feel less like a “booty call” … meaningless banter that calmed us down so what we both knew would happen next seemed “spontaneous.”

Could this be the first night of my dream coming true?

“I can see the Pacific Design Center from my bedroom window, wanna see?…C’mon.”  I stood up and grabbed him by the hand, then led him to the back of the apartment where my bedroom was.  I didn’t turn on the lights — so we could see out of the window, of course!  I put my left arm over his shoulders, and pointed out the PDC with my right hand. “There, see?”

It was a flawlessly executed move, if I do say so myself.  Within seconds, we were locked in each others arms, kissing passionately.  Months of dreaming of this very moment hadn’t prepared me for how powerful it was.  Every nerve in my body fired in waves of contented pleasure that rolled over me like a gentle breeze on a hot August afternoon.  I was caressed and caressing, and it wasn’t long before we were horizontal, with nothing between our naked flesh.

“Marvin, I have something I need to tell you.”

“Sí papi, ¿qué es?”

“I’m HIV positive.” 

I must have passed out when he hit me, because the next thing I remember was him walking out of my bedroom, fully clothed, and my jaw hurt.  I never saw Marvin with my own eyes again.

Looking back with the benefit of being much older and supposedly wiser now, Marvin’s reaction was “over-the-top,” but understandable; here someone he was about to be intimate with was putting his life at risk, literally — HIV can kill you.  HIV, which can weaken the human immune system to the point that it has difficulty fighting off certain life-threatening infections, was considered such a high health risk to the general population that many states implemented HIV-specific criminal exposure laws (statutes and regulations).  As of 2020, 37 states have laws that criminalize HIV exposure.

Laws for the 50 states and the District of Columbia are separated into five categories:

  1. HIV-specific laws that criminalize or control behaviors that can potentially expose another person to HIV.
  2. Sexually transmitted disease (STD), communicable, contagious, infectious disease (STD/communicable/infectious disease-specific) laws that criminalize or control behaviors that can potentially expose another person to STDs/communicable/infectious disease-specific; this includes HIV.
  3. Sentence enhancement laws specific to HIV that do not criminalize a behavior but increase the sentence length when a person with HIV commits certain crimes.
  4. Sentence enhancement laws specific to STDs that do not criminalize a behavior but increase the sentence length when a person with an STD commits certain crimes; this includes HIV.
  5. The “get out of jail free" category:  no specific criminalization laws.

Criminal statutes, such as reckless endangerment and attempted murder, can be used to criminalize behaviors that can potentially expose another to HIV and/or an STD; many states have laws that fall into more than one of the categories.  In 21 of the states, laws require people with HIV who are aware of their status to disclose their status to sex partners, and 12 states require disclosure to needle-sharing partners.

HIV exposure laws - USA
HIV exposure laws - USA - map legend

Since 2014, five states have modernized their HIV-related criminal laws to include (1) proof of intent to transmit, or (2) actual HIV transmission in order to sustain a criminal charge.  Additionally, they provide as mitigating factors taking measures to prevent transmission — such as viral suppression ("treatment as prevention" or TasP which can render an infected person non-infectious), condom use, and the use of PrEP by a partner.

I bring this up for two reasons, thoughtful reader.  First, it is an issue I care deeply about as an HIV positive man for over 23 years; I consider it my moral duty to become and remain as informed and up-to-date as I can on every aspect of HIV/AIDS so that I never put anyone else at risk of contracting this deadly contagious disease.  But secondly, and more importantly today, I want to pose a question to you.

We know that COVID-19 kills people.  There is no, as of yet, vaccine or cure.  Scientists, doctors, and public health officials and experts have a reasonably good idea of how it is transmitted; they have identified high risk behaviors, and steps that can be taken to lessen the possibility of giving COVID to another, innocent person if you are unfortunate enough to be infected.  In almost every conceivable way, having COVID is like having HIV/AIDS — they are both highly contagious, communicable diseases that can kill you or leave you with complications that will affect your health, well-being, and financial security for the rest of your life.  Both have a set of “high risk” behaviors that make transmission of the virus highly probable; likewise, both have simple, minimally obtrusive/invasive safety precautions and best practices that when observed lessen the spread of the disease from person to person.  Just as an HIV positive person should always wear a condom during sexual intercourse, a COVID positive person should always wear a mask when breathing!  In both cases — the condom and the mask — the positive person is protecting you from them, not them from you.  It is a moral imperative.

Just as we might say, “don’t stab someone with a knife because it might kill them and you would be guilty of murder or manslaughter at the least,” just as states, rightly, reflect the potentially criminal nature of knowingly infecting another person with HIV and acknowledge that reasonable steps (based on science) one takes to make transmission less likely reduce one's culpability for criminal liability, can we not apply the same litmus test to someone whose reckless actions put others in danger of contracting COVID-19?

Trump removes mask while infected with COVID

Not only do I think we can, I think we should.

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