Spring to summer to sex (with or without disclosure)

The 2021 state legislative sessions are winding down in state capitals across the country, which turns my mind to HIV criminalization and efforts to reform or eliminate these unnecessary laws in states throughout the U.S. This year has seen some successful efforts—in Virginia, where the law making mere non-disclosure a misdemeanor was eliminated—and some continuing frustrations, such as Florida, where some promising movement in 2020 was nowhere to be found this year. It was especially impressive to see victories this year, given the additional obstacles to lobbying and advancing legislation during the COVID pandemic.

While we should celebrate these victories, it is important for people living with HIV to keep in mind that HIV-based prosecutions can be brought in any state under general criminal laws, regardless of whether the state has an HIV-specific law on the books. Texas is a good example of a state where HIV-based criminal prosecutions still occur even though the state repealed its HIV-specific criminal law decades ago.

I recently represented a doctor in Texas called as a witness to testify against her own patient who was being tried under a sexual assault law for not disclosing his status. Once the prosecutors realized that the doctor was not going to cooperate, they offered the defendant a much better plea deal, essentially time already served while awaiting trial. But the fact that these types of charges—like sexual assault or reckless endangerment—are being used in the context of non-disclosure of HIV status serves as a cautionary tale for everyone living with HIV in every state.

...keep in mind that HIV-based prosecutions can be brought in any state under general criminal laws, regardless of whether the state has an HIV-specific law on the books.

People living with HIV can do things to protect themselves from becoming the subject of a prosecution like this. In some ways, I dislike even making these suggestions, because we should not need to do these things simply to be sexually active, but if taking one of these steps can prevent jail time, it seems worthwhile to consider them.

First, when it is safe, disclose your status prior to sexual activity. I know, I know—easier said than done, right? The idea that disclosure is expected or should be easy “if you really care about the person” is based on the antiquated, hetero-normative idea that sex only happens when two people are in a deeply connected, emotionally intimate relationship. Because sex in fact happens in all kinds of circumstances that don’t involve that level of intimacy or trust (or sometimes even the person’s name), disclosure can be a vulnerable, difficult, or even dangerous choice. I’m not saying that it is for everyone—or for anyone every time—but disclosure of one’s status does reduce the chances of prosecution.

Second, when you do disclose, try to document it. Again, this may be easier said than done. But if it’s in your Grindr profile or you disclose via a text message (and save the message), it is going to be a lot harder for the other person to claim that they were unaware of your status. You don’t need the person to sign a consent and release form, but getting them to acknowledge in writing that they are aware of your status is probably the closest thing we have to a fool-proof method of avoiding an HIV-based criminal prosecution.

Third, if you have access to care, try to be adherent to your HIV medications. If you are having sex without disclosing your status, having an undetectable viral load is probably the best thing you can do to avoid prosecution. Courts are slowly coming around to understanding that undetectable equals untransmittable (U=U), and criminal defense lawyers are starting to have more success in talking prosecutors out of pursuing cases in which there was no real risk of transmission. This suggestion is certainly not fail-safe by any stretch of the imagination, but it is quite a bit better than nothing. And, frankly, you’re getting a two-for out of it, because being adherent to your meds is also the very best thing for your long-term health. Worry-free sex plus physical health is a pretty good combination.

Finally, don’t talk to the police. If you do find yourself the subject of an investigation—or even if that hook-up that you didn’t tell because you were a little too drunk to care suddenly becomes curious about your status a few days after your encounter—don’t divulge anything that could result in a deprivation of your liberty. (I mean, if you’ve realized that hook-up is really the person of your dreams with whom you are going to spend the rest of your life, you may need to come clean about your status before you get to the altar—but that’s a different story.) Talk to a lawyer before you talk to the police or disclose your status to them. Too many times I have had to counsel someone who has already shared too much with the police. Though they will try to convince you otherwise, if they are investigating the situation, the police are not your friends and won’t “try to help you out.”  Invoke your constitutional rights to remain silent and to have a lawyer present.

I’m not trying to frighten you too much or make you overly anxious, dear reader, but I am trying to scare you just the right amount. In a world where any person living with HIV is just one jilted lover or one night of awesome (or bad) sex away from potential jail time, you really can’t be too cautious. I hope the sex is amazing—and that you can keep yourself safe from prosecution at the same time!

Scott Schoettes is an attorney and advocate who lives openly with HIV. He engages in impact litigation, public policy work, and education to protect, enhance, and advance the rights of everyone living with HIV.