Todd Heywood

As a reporter, I have spent a lot of time writing about HIV-specific criminal laws and their impact not only on those who are accused of violating them, but of the wider impact on HIV as an epidemic.

I have reported on the case of Michael Holder, a straight black man who was convicted in 2000 of failing to disclose his status to his white female partner. She recanted her testimony during trial, admitting that she knew he was HIV-positive, but a jury which included four members with blatantly racist attitudes convicted him.

I broke the story about the unprecedented bio-terrorism charges against a black gay man in the Detroit area. The man was charged with bio-terrorism for allegedly biting a neighbor during a brutal gay bashing incident.

So when the Jan. 20 post by John Aravosis supporting the hanging of a man convicted of failing to disclose his infection came across my inbox, it was a shocking reminder about how much work is left to do in relation to HIV and criminalization.

In that post he opined about how hard he was finding it to feel sorry for Sergeant David Gutierrez, 43.

First, let me begin by pointing readers to the Denver Principles. This powerful document was a declaration of the rights and responsibilities of persons with HIV written in Denver Colorado in 1983. Under recommendations for people HIV (called AIDS in this document because the virus would not be discovered for two more years), the Principles say HIV positive persons have an ethical responsibility to disclose their status to sex partners and to substitute low risk sexual behavior.

Let's be clear, no one is saying that HIV-positives don't have an ethical obligation to disclose.

What constitutes low risk behavior has changed significantly since 1983 when the Principles were written.

Sgt. Gutierrez was diagnosed while stationed in Italy in 2007. When he returned to McConnel Air Force Base, he began treatment. While the mainstream media report Arovosis linked to makes no mention of this, effective anti-retroviral treatment has been proven to reduce the risks of HIV infection significantly.

In 2008 the Swiss High Court ruled that an HIV-positive person with an undetectable viral load controlled by ART for six months of more and no other sexually transmitted infections was legally unable to transmit HIV.

Here is how AIDSMap sums up a study of HIV infectiousness and viral load:

A 2009 analysis of all studies to date in heterosexual couples where one partner was HIV-positive -- but where most were not on antiretroviral therapy (ART) -- has confirmed that a high viral load can significantly increase the risk of transmission, and that a low viral load (which is possible to achieve in a minority of people who do not receive ART) significantly reduces the risk. The authors calculated that out of 1000 HIV-positive individuals with a viral load below 400 copies/ml regularly engaging in vaginal sex with an HIV-negative partner, only one transmission could be expected to occur in the course of a year. In contrast, among 1000 HIV-positive individuals with a viral load above 50,000 copies/ml, at least 90 transmissions could be expected to occur in the course of a year.

Of course such information does not fit the narrow, stigmatizing view of HIV many Americans prefer to live with -- particularly gay and bi men.

Here is the result of a 2008 study of 1,725 men who have sex with men and HIV criminalization opinions:

Overall, 65% of men believed that it should be illegal for HIV-positive individuals to have unprotected sex without disclosure, 23% thought it should not be illegal and 12% did not know.

Support for criminalisation was highest (79%) among men aged between 18 and 20, and lowest (56%) among those aged 41 to 70. The investigators note that younger gay men were significantly less likely to have been tested for HIV. Separate research has shown that untested men are more likely to adopt a disclosure-based HIV prevention strategy "that gains credibility by transmission laws."

The overwhelming majority (70%) of HIV-negative and untested men (69%) supported legal sanctions, but only 38% of HIV-positive men endorsed criminalisation. "These differences most likely reflect a shift in orientation toward criminal statues on HIV transmission following seroconversion", comment the investigators.

Men with the lowest educational achievements were most likely to support criminalisation (75%), and those with a degree least likely (58%).

Over three-quarters of men who did not identify as gay or bisexual supported criminalisation compared to 63% of those who had some form of gay identity.

In addition, those who were least comfortable with their sexual orientation were most likely to endorse criminalisation.

That information is key to understanding an important study released in September of 2010.

That September study of 8,153 men who identified as gay or bisexual in 21 cities found the following staggering statistics:

  • 19% of the men tested positive for HIV, the virus that causes AIDS.
  • 28% of black, 18% of Hispanic, and 16% of white men tested positive for HIV.
  • 44% of the men who tested positive for HIV had been unaware of their infection.
  • 59% of black, 46% of Hispanic, and 26% of white men who tested positive for HIV were unaware of their infection.
  • 63% of the HIV-positive men age 18-29 were unaware of their infection.

So what does all this information really add up to?

HIV is a disease, but one which is significantly unlikely to be transmitted when one is undergoing treatment. But in order to get treatment one needs to get tested for the virus. Sadly, as we see by the above studies, most men who have sex with men are relying more and more on these disclosure laws, relegating their safety to another person's power. Worse than that, nearly half of those infected don't know they have the virus, but presume they are uninfected.

The real question here is not should Sgt. Gutierrez obligated ethically to disclose his HIV-positive status, but rather, why are Americans of any sexual orientation abdicating their personal health and safety to another person's willingness or ability to disclose?

In short, our ignorance as gay men is literally killing us. All that blog post has done is re-enforce that ignorance.