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California Shouldn’t Make It Easier For HIV-Positive People Like Me To Give Blood And Have Risky Sex


California recently passed a law that reduces the criminal charges related to knowingly exposing someone to HIV without consent. It demonstrates the power of narrative over reason. Scott Weiner, a Democratic state senator of California who co-wrote the law, penned an article defending his decision. It provides us with an in-depth look at how progressives not only view the law but the morality and ethics of disclosure.

He states, “Last week, Governor Jerry Brown signed SB 239, a bill I co-authored to modernize California’s HIV criminal statutes by treating HIV *exactly* the same as other serious and deadly diseases such as Ebola, SARS, hepatitis C, and tuberculosis: as a misdemeanor. Under current California law, only HIV is treated as a felony, and you don’t have to infect anyone — or even create a risk of infection — to be guilty and go to state prison.”

By “modernize” he means the law better reflects the liberal notion of what he describes. HIV is just another disease, no worse or more destructive than any other. It also assumes the issue at hand is infection rather than disclosure or consent. He is not alone in this thinking. The LGBT advocacy group Human Rights Campaign has advocated for the removal of HIV disclosure laws for quite some time. Zack Ford of ThinkProgress has devoted many pages and even an advocacy video titled “Criminalizing HIV Doesn’t Do Anything to Help Anyone” pushing this same narrative. All parties sincerely believe they are defending innocent people from discrimination and stigma and that the issue is criminality itself.

Can Someone Consent Without Knowing the Details?

Progressives tend to understand “illegal” to be contingent on social or identity status. As Weiner argues, “Who’s being prosecuted? An awful lot of women, particularly African American women and transgender women. Women constitute about 12% of HIV-positive people in California, but they account for 43% of prosecutions under these laws.”

The majority of these women engage in sex work. As the Los Angeles Times reported on a University of California School of Law study, “The vast majority of convictions were in prostitution solicitation incidents in which it is unknown whether any contact beyond a conversation or an exchange of money was initiated, the researchers said.”

The message is that the law disproportionately affects vulnerable populations—African-American women and transwomen. This alone is reason enough to find the law unjust regardless of the relevant behavior of the individuals involved. The other side of this argument is one of outcome. If an HIV-positive man does not disclose his status to a partner, the progressive argument reasons that as long as the HIV-negative partner is not actually infected there has been no harm inflicted. This is backed up by the reasoning that HIV medications now make it extremely difficult to transmit the virus.

The problem is not one of outcome but one of motivation and responsibility. I am HIV-positive, and I have an undetectable viral load. This means it would be close to impossible for me to infect another person sexually. But do I have a moral and ethical obligation to tell a potential partner this information and allow him to determine for himself that risk? I argue that I do. The question is, should I be legally obligated as well? The answer is one of consent. Can a person consent to sex without knowing the physical risks of the activity? I assert he or she cannot.

We’re Willing to Increase HIV to Make Some Feel Better

The primary motivation is politics. Since the 1990s the LGBT Left has been fixated on the idea of a stigma against HIV and, by association, homosexuality. The outbreak’s origin in gay sex resulted in mass panic and fear, and early patients experienced isolation and irrational hostility. The LGBT Left has been obsessed with righting this social injustice ever since. It is why part of the law in question includes blood donations.

The LGBT Left believes denying gay men the ability to donate blood at all is an act of discrimination, so HIV status should not be considered here either. Again, Weiner argues, “due to modern testing technology, it’s almost impossible to get HIV from a blood transfusion. If a blood donor knows he or she is HIV-positive — in other words, if he or she gets a test that comes back positive — that means that when the blood bank tests that person’s blood, which they always do, that test will also come back positive, and the blood will be discarded and won’t infect anyone. If the blood bank tests the blood and the test comes back negative but is actually positive (that could happen if the infection occurred within a few weeks of the blood draw), then the donor’s HIV test also would have come back negative, meaning he wouldn’t be guilty of a crime since he never tested positive.”

Blood donors are asked screening questions precisely to eliminate this risk. HIV is related directly to a very limited set of behaviors that can easily be screened for. The concern is not of risk, but of feelings and outcome. If the blood will be tested anyway, why does it matter if an HIV-positive person donates it?

The only rational conclusion is the senator is more worried about the experience of rejection felt by the HIV-positive person who wants to donate blood than the risk that person poses on whoever might receive the blood. The senator accidentally advocates for tighter restrictions on blood donations by admitting a window of uncertainty could expose blood donation to HIV. Unfortunately, the emotional plea behind the argument outweighs this risk.

This Is Simply Deadly Political Correctness

Advocates hope to inspire trust and medical treatment in high-risk populations by making HIV appear far more mundane and socially acceptable. Their theory says that if HIV is “criminalized” (and it is not), exposed individuals will fear seeking testing or treatment. But testing and treatment have been widely available, often for free, for quite a while now. People are simply not arrested upon testing positive for HIV. The statistics surrounding HIV tell us the story.

From the Centers for Disease Control:

  • Gay and bisexual men accounted for 82% (26,376) of new HIV diagnoses among all males aged 13 and older and 67% of the total new diagnoses in the United States.
  • Gay and bisexual men aged 13 to 24 accounted for 92% of new HIV diagnoses among all men in their age group and 27% of new diagnoses among all gay and bisexual men.
  • Among all gay and bisexual men living with HIV in 2014, 83% had received a diagnosis, 61% received HIV medical care in 2014, 48% were receiving continuous HIV care, and 51% had a suppressed viral load.

Nearly half the HIV-positive gay male population refuses treatment. This undermines the fundamental argument of low infection risk. Certainly, having sex with a responsible person who takes his medications and is healthy is less risky, but if no one is required to disclose, how can you be sure he is not one of the 49 percent who isn’t taking medication at all? How can you consent to sex without this information?

The primary concern surrounding this law is of its emotional narrative. The LGBT Left celebrates this as a progressive victory and is utterly disinterested in any argument about risks, as it validates stigma or negative stereotypes they believe they are fighting. As the pattern goes, other states will take this same path and soon several more progressive states will boast of their newly “modernized” HIV laws. In the end, gay and bisexual men, especially young men, will be at a higher risk. The cultural demand for HIV privacy as an entitlement will create a scenario of predatory behaviors, recklessness, and ruined lives.

What the Right Should Do

How can the Right respond to this? So far the Right has merely reacted to the insanity of the Left on this issue but has not taken direct action. We are at a disadvantage, as the advocates of this have successfully lobbied all HIV/AIDS organizations, LGBT organizations, many women’s health organizations, and other minority advocacy groups.

Republicans should be reviewing their state laws surrounding HIV disclosure.

The medical community is eager to celebrate advances in HIV medication and invested in marketing treatment as an infection-prevention method. These advocates are correct in their assertion that many of these laws are outdated. But this should not mean they are unnecessary.

Republicans should be reviewing their state laws surrounding HIV disclosure to ensure they reflect both modern medical advances and protect individuals from reckless or malicious behavior. Consent should be the main selling point to the general population as well as moral and ethical obligation to disclose. There should be a firm legal requirement to disclose your HIV status to anyone who is at risk of exposure, but this can and must be done with rational law.

Finally, it must be absolutely imperative that blood donations be protected. Of all the concerns here, this particular issue threatens truly vulnerable people the most. Laws should evolve when necessary, but society still requires them. The Right should be on the forefront of this battle.