Ken’s Take on the World


The Naked Gun
May 25, 2012, 2:30 pm
Filed under: Health and Medicine, Legal | Tags: , , , , ,

Imagine a situation such as this.  A young guy, in his late-20’s, decides to surprise his live-in girlfriend of three years with an engagement ring for her Birthday.  He gets home early from work and intends on hiding the ring inside her nightstand drawer.  He opens the drawer and is surprised to see that there is a handgun sitting atop a nice concealed holster.  It is a Glock, 9 mm semi-automatic.  The guy is stunned.  Actually, he is shocked.  How could this woman he has lived with for three years have kept this hidden from him?

He immediately goes to the local police department and says that he wants this woman arrested for failing to disclose that she had concealed a deadly weapon from him for all this time.  The Desk Sergeant asks him if the safety was on and the man replies, “Yes.  There was even a trigger lock in place.”  The cop asks him what the problem is then.  He says, “It’s a deadly weapon!  She could shoot me at anytime if she wanted.”  The police officer inquires if the girlfriend has ever expressed an intent to harm him in the past and the man says that she has not.  The cop, being patient, asks the man if the gun was loaded and the man says he figured that it was.  “Why else have a gun?”  The man proceeds to tell the police officer about a the brother of a friend of his cousin who was shot to death during a robbery in San Francisco in the late-‘80’s.  He says that he is petrified of guns because of that and that it should be against the law not to tell someone that you are intimate with that you own a deadly weapon.  The police officer suggests the man go home and talk with his girlfriend about his concerns and that there is nothing the police can do because it is not against the law to own a firearm in most cases.

Pretty silly, right?

Now, picture this.  A young guy, in his late-20’s, decides to surprise his live-in girlfriend of three years with an engagement ring for her Birthday.  He gets home early from work and intends on hiding the ring inside her nightstand drawer.  He opens the drawer and sees some prescription medications inside the drawer.  Curious, he Google’s the names of a couple of the drugs and is shocked to learn they are prescribed to treat HIV.

He immediately goes to the local police department and says that he wants this woman arrested for failing to disclose that she had concealed a deadly weapon from him for all this time.  Now, here is where things change.  In many states, a law enforcement officer does not have to investigate as to whether there was an intent to harm or even an ability to harm.  The fact that the woman may not have disclosed her status to her partner is sufficient to initiate a warrant for her arrest.  The arrest will likely lead to either a plea or a conviction, and, depending on the Judge, imprisonment is a likely possibility.  This is the nature of disclosure laws drafted in the late 1980’s in most states.  This is also a very real possibility for anyone living with HIV or AIDS.  Without regard to any effort a person with HIV may make to prevent transmission, the law looks simply at whether or not there was disclosure to an intimate partner.  This attitude is outdated and inconsistent with regulations governing any other communicable illness.

Today, however, the law fails to keep up with current realities associated with infection with the Human Immunodeficiency Virus (HIV).  First, contemporary therapies are able to significantly reduce levels of HIV within blood and other body fluids to a point where the risk of infecting others approaches very remote.  Second, the use of condoms is well documented to be the most effective (following abstinence) method of prevention of any sexually-transmitted infection (STI).  Third, laws requiring disclosure were introduced prior to the availability of effective anti-retroviral medication regimens and while scientific knowledge regarding modes of transmission was still being determined.

Some Prosecutor’s have invoked terrorism statutes against people with HIV.  Some have invoked assault with a deadly weapon laws and attempted murder laws.  Some have used rape provisions even though no force or coercion was involved.  Terrorism, assault with a deadly weapon, rape and attempted murder each has a common link.  They are each associated with an intent to harm.  Failure to disclose one’s HIV status does not even imply intent to harm.  A case may, perhaps, be made regarding a breach of contract.  Failure to disclose does not necessarily violate an implied or informed consent between two parties.

In recent cases, a Michigan man was charged under terrorism statutes because he bit his neighbor during an altercation and a 23-year-old Ohio man was put on trial for failing to disclose that he had contracted HIV from a blood transfusion in his early teens before having protected sex with his 20 year-old girlfriend.  In the Michigan case, Prosecutors dropped the terrorism charges and the judge in the Ohio case refused to follow the Prosecutors recommendations for jail time and making the young man register as a sex offender.

In a majority of these cases, civil remedies are available to address these cases.  I believe it is now time to review, and revise, laws relating to disclosure of HIV status.  I do not believe that the law should be used to criminalize a person’s status.  If that is the intent of the law, then why is it not applicable to other STI’s including syphilis, gonorrhea or herpes?  Should it not apply to individuals with Hepatitis B or C as it is well known the HBV or HCV can lead to liver cancer or liver failure?  If the answer is no, then there is an inconsistency in the law and that inconsistency is based on bias which cannot be tolerated in the law.  If the answer is yes, then there is an inconsistency in our values regarding personal responsibility and that those who claim that individuals must have the ability to make reasoned decisions are failing to be consistent in this regard as a result of prejudice.

In any case, without proof of intent to cause harm, criminal statutes are inappropriate for the regulation of consensual behaviors between mentally competent adults.  Civil statutes exist for this purpose and should be thus used.  This topic is a controversial one, however, critical thought suggests this is a topic worth examining and discussing.

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Reblogged this on Ken’s Take on the World.

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