On August 16, 2010, the German “No Angel’s” pop star Nadia Benaissa testified that she knowingly had unprotected sex with multiple partners without disclosing her HIV status. In Germany, this act comes with a ten year prison sentence. In NJ this is a 3rd degree crime punishable by up to 5 years imprisonment and up to $15,000 fine. New Jersey’s disclosure law is amongst the most ambiguous of the states, addressing disclosure must take place before “sexual penetration.” The definition of penetra-tion is left to the discretion of the jury (who penetrated what? With what?) and in this state of HIV stig-ma, ignorance and misinformation, this does not bode well for the people living with HIV/AIDS (PWLHA).
The real question is who is at fault for contracting HIV from a partner through unprotected sex? The law says the responsibility falls in the lap of PLWHA but what if that individual hasn’t been tested and is un-aware of their status? Through their initial irresponsibility (not getting tested) they are relinquished of the burden of fault in the eyes of the law. What about the other partner, the one who may or may not have been tested, may or may not be positive… is he or she in any way accountable for his/her exposure to HIV? HIV stigma allows people to blame the HIV positive, not the individual who was infected by an HIV positive person through unprotected sex. In an attempt to deny personal vulnerability, there is a communal desire to blame the infected rather than accept responsibility for one’s actions.
Stigma as we know it today is not an unexplained phenomenon but rather a strategically developed mindset. Back in the 1980’s, through misguided efforts to protect oneself, the population demanded to know who was positive out of fear of contracting the virus. People were uninformed and concerned about contracting HIV through casual contact or by an HIV+ individual maliciously exposing them. This resulted in disclosure laws forcing PLWHA to disclose their status before, according to NJ, sexually “penetrating” or being “penetrated.”
Currently 23 US states have laws that make it a crime for PLWHA to engage in any sexual activity without disclosing their HIV-positive status to their prospective partners first. One question this raises is why are we punishing the people who were responsible and got tested, but not those who were irresponsible and did not? Disclosure laws are not inherently intended to prevent people from getting tested. Laws are created for many reasons, one of which is to establish social norms. Prevention efforts championing opposition to domestic violence and drunk driving are supported by criminalization of such activities. The same holds true in the world of public health; while health educators emphasize personal responsibility and encourage individuals to take control of their own health, the legal system has the ability to take an authoritative role in prevention by criminalizing certain behaviors.
NJWAN finds fault with several aspects of the criminalization of nondisclosure including the fact that disclosure laws often disregard whether or not safer sex took place and thereby undermining national prevention efforts. Disclosure laws endorse a norm of disclosing one’s HIV status before jumping in bed, car, or bathroom stall, with each other. This parallels how domestic violence laws endorse an anti-domestic violence norm. But, in the world of HIV disclosure law, the norm being promoted is in direct conflict with public health messages of individual responsibility. Community health educators have encouraged consumers to protect themselves in all situations under the assumption that every partner is HIV+. This is not an unrealistic philosophy as 20% of all PLWHA are unaware of their status. NJWAN would like to see the law catch up with what health educators have known for years…it takes two to tango, or to contract HIV and only you can protect yourself. It is not who you are, but what you do that puts you at risk.