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Intentional Transmission of HIV: OK in CA!
I cannot believe that I live in a state like this.
Governor Brown and his lackeys have determined that intentionally transmitting HIV is only a misdemeanor. Transmission of a life-altering, and eventually life-ending, disease has now been demoted to an afterthought.
Additionally, those who knowingly donate infected blood will also fall under the new reduced penalties.
They are right. This isn’t a gay or straight issue. This is a public health issue. When you have people who use their communicable illness as a weapon, you have people who also fall under criminal law. By removing this penalty, it also removed the aggravated portion of assault for people who are sexually assaulted. It necessarily reduces the stigma associated with other blood-borne illnesses.
This is a slippery slope toward decriminalizing other intentional transmission of communicable diseases.
Does this mean that a man who doesn’t tell his girlfriend that he has Hepatitis B cannot be prosecuted when he passes it on, simply because it won’t end her life immediately?
Even more frightening, does this limit prosecution in the future of crimes against patients when healthcare workers have been spat at and have been stabbed by their patients’ used needles? Will this weaken current legislation to protect the public?
The answer is a resounding yes. In California, the urge to protect the minorities has irrevocably injured the majority.
It might be time to support CalExit.
Published in Law
I’ve heard this elsewhere too. Say the wrong thing and you will spend years removing the knives from your back.
How are other communicable diseases treated by the law?
It’s problematic. I understand the reasoning between decriminalizing what adults do knowingly, but withholding HIV status with a sexual partner is a slow form of manslaughter. Not everyone can afford the meds. Some people become unresponsive to them over time.
This law disproportionately affects people without any communicable disease.
The only people it benefits are a very small proportion of people who do not want to take responsibility for their communicable disease. I can’t imagine it is fair or feels good to have to disclose to every partner your HIV status, but this is what we do to protect lives.
It’s inhumane. This law reduces the value of life based on the treatment for an illness. Do we reduce penalties for shooting someone if it misses all major organs? Do we reduce penalties for poisoning because there’s a reversal agent?
This law is just bizarre.
In which sense? People with tuberculosis receive community health counseling and have their medications delivered to their homes. They have a supervised treatment regime.
Hepatits B and C fall under this law, as they are sexually transmitted.
From the article…. The new law, which was signed by Brown on Oct. 6 and takes effect January 1, changes this to a misdemeanor, carrying a 6-month prison term — the same punishment as knowingly exposing someone to other communicable diseases.
In this sense. Is there a reason the law should be disparate?
Not to mention that each communicable disease behaves differently, and the law is (theoretically) designed to take that into account.
HIV (and to a lesser extent hepatitis B and C) are fatal diseases, but ones which have long periods of latency in which the infected individual is healthy, asymptomatic, yet still contagious. Plus, no cure (hep B and HIV) and no vaccine (hep C and HIV).
So it makes sense to treat HIV differently than most other communicable diseases.
There are a couple of things with AIDS that muddy the waters:
a) It’s associated with gay guys so if you badmouth it, you’re a bigot
b) When someone gives it to another person, the person doesn’t just drop dead on the spot. If that happened, I bet even the liberals might have a different view. (or would they?)
And the other problem, for me anyway, is that the person they give it to can go years without even knowing they have it, and gives it to more and more people. Unfortunately, I suspect that for the activists this is a feature rather than a bug.
And the argument that since hiv has gone from a certain death, to a manageable diease like other communicable diseases, so should be treated in a like manner?
Yes. They love to do those “Living With AIDS” posters and PSAs, as if it’s just another minor annoyance like hay fever instead of a chronic terminal condition that kills your sex life and makes you chained to taking 43 pills a day and worse.
Rick Zbur, executive director of Equality California, said it makes progress toward eliminating social stigma. “When people are no longer penalized for knowing their status, it encourages them to come forward, get tested and get treatment. That’s good for all Californians.”
These people are truly not acquainted with reality.
I liked the name of this group, from the article: LGBTQ, Gender and Reproductive Justice Project. It seems to me if you’re one of those things, “reproductive justice” (whatever that is) isn’t really your issue.
I think TheRightNurse is living in TheWrongState . . .
That is the argument for the law, basically. Since it doesn’t kill like it used to (because of drugs), it shouldn’t be treated as a deadly disease. This is unfortunately not medically well founded. HIV can progress to AIDS because not all people repond to the drugs. Additionally, it’s not the AIDS that kills you; it’s pneumonia or Kaposi’s Sarcoma or something else, much like Hep B and C.
These arguments fail because they rely upon medical technology that is new and fallible. The law is intended to make people more honest rather than less by reducing penalties. The fact is that the time and money should be better spent on working within high-risk communities to prevent transmission and to discuss honesty.
This seems a clear First Amendment violation to me. It should fall to the first correctly structured challenge. @therightnurse, wanna be the test case?
I like to compare of this to the laws against being shot by a gun. Sure, a .22 caliber bullet is much less likely to kill compared to a .357 or bigger calibers, but the intent is the same.
IMHO, it doesn’t matter how many drugs are out there to save HIV peeps. Someone taking action with the intent to kill should be criminally prosecuted regardless of the weapon. Just because modern medicine saves lives from criminal action reduces the number of deaths, that doesn’t mean we should back away from intent as a factor in prosecuting the crime.
The law is intended to make people more honest rather than less by reducing penalties.
I don’t get it. Shouldn’t bigger penalties make a person more honest than small, especially if the small penalty goes along with the idea that HIV isn’t so bad anymore?
Well, there’s a decent chance that will happen. There could be a John Doe that shows up from time to time under various aliases and prefers to go be the feminine identity she has developed for herself. Sometimes it is possible to get confused because the parts don’t match the identifier and it’s hard to discuss foley care to someone who identifies as female when you’re discussing foreskin cleaning.
Who knows. Well, y’all will, should that happen. Under the guidance of my lawyer, of course.
The bill speaks of knowingly, not intentionally.
If someone knowingly employ a very reliable method of killing someone against another person, then others can reasonably infer that the intent of employing that method was to kill – else why knowingly employ that method? When a method is less reliable, it’s harder to infer intent.
It is possible to take it as given that anyone knowingly exposing others to HIV without warning them is intending to kill them, but if so, it’s quite an unreliable method of attempting a kill, or indeed, even of attempting to maim someone (though I would certainly consider a person dependent on highly costly and invasive medical treatment for the rest of his life maimed).
None of which is to say that those who knowingly put others at risk of death or maiming shouldn’t be held accountable. Just that knowledge is a lower level of mens rea than intent is.
Well there’s some quirks here. If you know you have HIV/HepB or HepC/Syphillis/HPV/Tuberculosis and you expose someone knowingly, you know that the chances are pretty good that they’ll get it. That’s like saying that swinging a gun around and shooting randomly at a house is just manslaughter rather than murder. You knew there were people to be hit. You know that you held a deadly weapon. You knew that it only took one bullet to kill someone and yet you did it anyway.
That’s still murder. It’s less than 1st degree murder, but it’s murder.
There are cases of people who have intentionally hid their HIV status in order to infect others. Now, this source is bad, but it just takes a quick google to find the news cases. Those people would now only have a misdemeanor for ultimately killing someone.
If it takes time, does that make it less intentional? Because there’s a chance they might not, is that less intentional? If you make someone play Russian Roulette and they kill themselves is it not still murder?
I don’t think so.
Part of this law is also enacted so that the names of the accusers will be redacted and protected from public exposure to employers. It also protects the HIV positive individuals so that they can fill out employment forms and mark that they have *not* been convicted of a felony. Because, you know, it’s just their personal lives.
Don’t forget bug chasers….
Canadian law basically asserts the HIV positive person (or any positive STI) has to inform their sexual partner of their status if there is a reasonable risk of infection. Basically this means one may not have to reveal their status if they use condoms and they know their viral count is low.
There is a stigma certainly attached to HIV positive status. But for everyone’s well being its best HIV positive people will freely and are made comfortable revealing their status to sexual partners. It dramatically reduces the rate of any infection. But that being said that has to be coupled with wider public acceptance and knowledge of HIV. Such as that it is is quite safe to have a relationship with an HIV positive person so long as you use condoms, monitor viral levels and perhaps use drugs like PrEP.
Do you have the option in the US of marking your blood to not be consumed? In Canada when they gather blood the nurse leaves the booth and gives you two stickers, one comes from a “yes” paper the other “do not use”. If you put the do not use on the bag your blood will still be tested but never used. But additionally they only check for like 2 STIs and rest the more boring diseases. So you still really need to go get a proper test if you get some uncomfortable rashes or what not.
Yes. It depends on the facility, but most will allow you to do that because sometimes there is pressure to donate blood (work blood drive) and the appearance is more important.
The blood banks thoroughly check the blood received for HIV, Hepatitis, CMV, and now West Nile Virus. There is less and less reason for the offense to be made a misdemeanor.
That is correct. That acceptance comes with knowledge and with honesty. As people see others managing things responsibly in the hetero and gay communities, it will normalize and will be treated as what it is: a life threatening viral illness. There shouldn’t be stigma so much as care and knowledge.
That said, I have had someone positive with HIV and Hepatitis B/C rip a bloody IV out in my face. Luckily, I wear glasses, so I have some protection. They refused to have gauze applied and marched out of the hospital, bleeding. This is 1) assault and battery and 2) a threat to the general public since there are people with minimal immune systems or actively sick that may use those same elevators and have skin tears, small cuts, whatever. The threat may be low, but it is there and it is on the individual to take reasonable care to prevent transmission to others.
I agree there are quirks.
One being that the model penal code understanding of “knowingly” is “A person acts knowingly if he is aware that his conduct will result in certain consequences. In other words, a person acts knowingly if he is aware that it is practically certain that his conduct will cause a specific result.” Compare this to “recklessly” – “A person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions. The risk must be substantial enough that the action represents a gross deviation from what a reasonable law abiding person would do.”
The chances, for example, of someone catching HIV from a single act of, say, unprotected sex, aren’t large in absolute terms (not “practically certain”). What makes these small chances unacceptably large is how awful the consequences are if it does happen (so the risk, though small, is “substantial”).
All else being equal, the more sex acts a couple has together, the more the risk compounds, according to the estimate
1 – (1-r)^n,
where r is the risk and n is the number of acts – for a 5% risk (and the HIV risk per sex act appears to be under 5%, sometimes well under, depending on the act), it takes 45 acts to cross the 90% threshold (and I’d agree 90% seems large enough to count as “practically certain”). Of course, not all else is necessarily equal – which adds its own wrinkles.
Even if your risk of transmitting a horrible disease during an act is under 5%, the very horribleness of the disease may make the act reckless. Nonetheless, a person reasoning, “Despite my not disclosing my HIV+ status, this person is unlikely to get HIV from a one-night stand with me,” is reasoning correctly. The disease is horrible enough that we don’t consider “unlikely” good enough, but would it make sense to call transmission intentional here? Not, it seems to me, unless there was evidence the HIV+ person was hoping to transmit the disease against odds.
On the other hand, if you’re intending to expose another person to an indefinite number of transmission opportunities without their knowledge, you should correctly reason that you’re putting them at much higher risk – approaching “practically certain” risk at some point – raising the question of why you would do that unless you were also OK with infecting them eventually?
It does seem reasonable to say that, when there’s a substantial chance A won’t cause B, a person could do A without intending B. Of course, a person could also do A while intending B:
For example, I believe with practical certainty that (A) sticking pins into dolls won’t (B) kill your victim of choice. But if someone did believe he could bring about someone’s death by sticking a doll full of pins, then his sticking pins into a doll is evidence of his intent to kill.
It is very quirky. Intent has to do with state of mind as well as likely consequences. There’s something really unsettling to the conservative temperament about requiring “mind reading” to determine level of culpability. And yet evaluating mens rea and actus reus in combination seems to be one of the world’s less-unjust ways of meting out criminal justice.
Who in this room would knowingly have sex with a person who has AIDS as long as they used a condom? Beuhler? Beuhler??
I think that presumes a number of factors for which we cannot account. Let’s be honest: sex isn’t always gentle. Sometimes people can be overly enthusiastic. People end up in the ER due to these injuries, so it is not beyond the realm of possibility that a one-night stand might have less care and caution to ensure proper…readiness for a sex act. There’s a much higher risk of blood-fluid contact at that point than there would previously be.
It is also true that drunk drivers are not 100% likely to kill someone, however, because the consequences of those actions are so serious, we consider them to have potential to be felonies. They are not always just misdemeanors even if one didn’t mean to get behind the wheel.
The law does not always care so much about intent, so much as the consequences of those actions. This should be one of those cases, otherwise that would be everyone’s defense. “I just didn’t think it’d really happen”.
Denial is not a good defense.
It’s interesting to bring up drunk driving, because in California, a drunk-driving accident that kills others may be prosecuted either as misdemeanor manslaughter, felony manslaughter, or, in extreme cases, murder (not all states consider DUI murder a thing, I understand, but California does), and it’s not just consequences, but the offender’s mindset, which determines which it is.
To call something “only” reckless or negligent is not to say it shouldn’t be a felony. I continue to observe, though, that there is something discomfiting to many conservatives about how much the law does care about an offender’s mindset.
I don’t get that, in Oregon intoxication is not a defense in any statute. Your first DUII offense is a felony, and you have to have an interlock device installed on your vehicle if found guilty, or if you opt for diversion.