Legally Forced to Reveal HIV Infection – The Supreme Court Weighs In


HIV should never be a problem when dating…that’s because the honorable thing to do is admit to your potential sexual partner that one is HIV positive before anything happens. Or at least, that’s what everyone assumes. However, we also have to assume that if a small part of the population is willing to lie to get sex (whether making up fake names, exaggerating their income or achievements, or even faking an entire personality) then they’re probably willing to hide the fact that they’re HIV positive as well.

Especially since hiding information, or simply not disclosing what your partner would like to know, is not technically a lie. Still, the ethical and moral implications of having an STD and dating does require some heavy thinking…and that’s precisely what’s happening in Florida’s Supreme Court as of February 2015.

In most U.S. states, it is required by law for a person who is HIV positive to reveal their infection before having sexual intercourse. Not doing so would not only be considered highly unethical but illegal. Naturally, the defense against this argument is, “If I use a condom and the risk of transmission is all but totally eliminated, why should I have to mark myself as unfit for dating someone that I like?”

Ethical dilemma aside, the legality of it is becoming quite the scare. The original Supreme Court decision requiring HIV positive individuals to confess to their would-be partners comes from a law dating back to 1986. However, that Supreme Court case involved the “traditional” roles of male and female and was never construed as a statement for or against gay and lesbian sex.

The latest case coming out of Florida involves an HIV positive man who is now being charged with a felony after failing to tell his same sex partner about his status. Public defender Brian Ellison, who is fighting against the charge, states that the law was exclusively about male and female sexual relations, not same sex partnership.

Ellison avoided any ethical discussion of his client’s behavior and instead focused on the loophole of the law, stating that technically his client didn’t violate any written law on gay sex and thus cannot be charged for a felony crime.
The details being revealed in the case are certainly incriminating, with Ellison’s client having been accused of falsifying an HIV negative test. His defense is clever, and downright thought provoking. Ellison states, “It’s always been defined as between a man and a woman…In all of that time, the Legislature has never expressed any intent to give it a more expansive meaning than it has always had, both in this court and elsewhere in this entire criminal code.”

True to Ellison’s words, Florida lawmakers certainly knew of homosexuality in the early 1900s but never made an effort to clarify the STD law regarding what counts as sexual intercourse. After all, long before AIDS and HIV, there was mass panic about the spread of syphilis and gonorrhea.

The issue of whether condom usage negates the obligation to tell the truth is complicated by the fact that no sexual encounter—even with a condom—is completely safe from HIV infection. The incidence of infection among regular condom users, according to some sources, is as low as 1.14 in 100, compared to 5.75 per 100 among people who never used condoms. This does suggest an 80 percent reduction of infection…but is 80 percent enough?

It is important to realize that having protected sex with an HIV person is statistically safe—and many individuals, as well as a couple’s child, can report a clean bill of health even after living with an HIV positive partner.

Back in 2012, The Guardian printed a great story about dealing with the “elephant in the room” and having to live with the anxiety of dating an HIV negative partner—including the type of partner who says he/she is okay with the confession, but is really not. However, the story’s subject, Montse Magadan, concluded with a strong sentiment of ethical behavior. “That’s my message to people, that if you are HIV positive and if you are having sex with somebody who is negative, you should protect that person. It is for that person also to choose if they want to use a condom or no.”

This doesn’t bode well for Brian Ellison and his client who listened to Justice Barbara Pariente say, “But would you agree that when that statute was enacted, it was the intent to make sure that anybody that was going to have any kind of sexual activity that could transmit AIDS advise their partner?”

Florida recently took a huge step to legalize gay marriage and has shown itself to be a progressive state, actively supporting the rights of gay couples. While it is possible Ellison will win his case on a technicality, expect Florida legislation to make the ethical obligation in every sexual circumstance perfectly clear in the very near future.

In the end, it’s not necessarily about loving your temporary partner and doing the right thing; it’s more about having respect for a kind stranger, who in exchange for his friendly disposition and fair dealing, deserves to know the truth about the uncertain future.