State High Court Expands Legal Responsibility for HIV Infection

[YouWantitWhen????]

Posted: 7/4/06 at 12:14pm

"July 3, 2006 - A divided California Supreme Court ruled Monday that people who lead high-risk sexual lifestyles have good reason to know they may be infected with HIV and are responsible for informing partners about possible exposure.

The 4-3 ruling in a case where a woman accused her ex-husband of giving her HIV on their honeymoon is the state Supreme Court's first involving allegations of negligent HIV infection. It makes those with "constructive knowledge" -- people who should have known by their behavior and other signs they were infected but perhaps didn't -- legally liable for infecting others.

The Michigan Supreme Court is the only other high court to rule similarly in a 1993 case involving former NBA star Earvin "Magic" Johnson, who tested positive for HIV in 1991.

Justice Marvin Baxter, writing for the four judges that formed the court's majority, said that "society has an overriding policy of preventing the spread of sexually transmitted diseases, especially HIV, which would be enhanced by imposing a duty of care on those who have reason to know they are infected with HIV."

Baxter also wrote that "negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection."

Hmmm. Thoughts?

California High Court Expands Legal Responsibility for HIV Infection

[wonderwaiter]

Posted: 7/4/06 at 12:18pm

It makes those with "constructive knowledge" -- people who should have known by their behavior and other signs they were infected but perhaps didn't -- legally liable for infecting others.

Does that mean what I think it means?

[colleen_lee]

Posted: 7/4/06 at 12:21pm

I don't like the sound of it. The language is definitely concerning. I can't say I entirely disagree with the principle behind it, and it may have gone to the courts with good intentions but the current language is worrisome.

[wonderwaiter]

Posted: 7/4/06 at 12:23pm

Exactly. It's not a bad "idea", but it sounds like you could be legally culpable just for being found "slutty" in the eyes of the law.

[YouWantitWhen????]

Posted: 7/4/06 at 12:26pm

That is how I read it as well.

If you have at risk behavior, whatever the hell that is today, you could be held responsible.

This is clearly a subjective standard, that will be more difficult to define than pornography.

I do not like this one bit. But then again, intentionally ignorance of the facts should not shield you from being held responsible for your actions.

[wonderwaiter]

Posted: 7/4/06 at 12:32pm

Yes, but this gets too close to the line between "Responsible for your actions" (a good thing), and "Legislating morality" (a very, very bad thing.)

[DG]

Posted: 7/4/06 at 12:33pm

Is it possible that they are being intentially vague, so that it can pave the way for future legislation requiring mandatory testing? It doesn't seem possible to draw any 'lines in the sand' with this wording - so someone could argue that it's in the state's interest to know about everyone, and thereby hold them responsible.

[YouWantitWhen????]

Posted: 7/4/06 at 12:44pm

I don't know DG.

I am not sure how this can be enforced or interpreted.

I wonder if the same ruling would have occurred if the husband was cheating on the wife with other women, and not men.

I have some friends who year ago assumed they were HIV positive, and then were surprised that they tested negative.

And WW - I agree with you.

[Unknown User]

Posted: 7/4/06 at 1:27pm

"actual knowledge of the infection" and "reason to know of the infection."

So I guess as a gay man I have reason to know of my infection even though I may not have knowledge of it.
Updated On: 7/4/06 at 01:27 PM

[Elphaba]

Posted: 7/4/06 at 1:28pm

not for just being slutty, but it can be construed just by being gay.
The intentions are good (as in Michigan, where I was living when they passed their law)......but the wording is suspect.

[jimnysf]

Posted: 7/4/06 at 1:30pm

Welcome back, Chita. Where have you been?

[wonderwaiter]

Posted: 7/4/06 at 1:31pm

Gay. Slutty. I'm sure there are plenty of legislators who assume these are synonymous. That's what alarms me.

[Elphaba]

Posted: 7/4/06 at 1:32pm

I guess, Chita......along with trying to bed every straight man on the planet they now think we can self-diagnose.......

[DayDreamer]

Posted: 7/4/06 at 1:34pm

How do I word this... it just rubs me the wrong way that there's no responsibility placed on the person who gets infected, all the responsibility seems to fall on the infected person. And yes, the infected person SHOULD always disclose, but anyone NOT infected should ALWAYS be safe, unless you know 100% that the person is negative. Because people do cheat. Not all... mind you. It's a two way street...

[colleen_lee]

Posted: 7/4/06 at 1:40pm

But, at the same time, it seems a little unfair and fairly unreasonable for the non-cheating half to contiune to insist they use condoms 5 years into a realtionship just "in case" their partner decides cheat.

[Unknown User]

Posted: 7/4/06 at 1:40pm

hey jimmy, healing some self inflicted wounds....

I have never understood why the resposibility falls solely on the person infected. I think people having sex in 2006 should assume the risks and protect themselves.

Of course when you are in a monogamous relationship and someone strays then it gets more complicated.

[jimnysf]

Posted: 7/4/06 at 1:41pm

Glad to see you back, Chita. Hope all is well!

[Elphaba]

Posted: 7/4/06 at 1:45pm

Day I am in total agreement with you. Everyone must be responsible for their own actions, hence if they do not play safe they cannot blame anyone but themselves.....although I also believe in disclosure beforehand.

And Chita has a point, in a monogamous relationship, the non-cheating partner would never think to play safe with his partner since they are (assumably) both negative, and in a (supposedly)monogamous relationship. That is about the only time, in my opinion that the victim shares no responsibility, unless it's the responsibility of believing one he loves....It's complicated.

[DayDreamer]

Posted: 7/4/06 at 1:53pm

I understand about being in a monogamous relationship. Those rules are totally different. But, as a gay man, IF I was negative, I think even being in a 'monogamous' relationship I'd still want to get tested every year. But then again... that's a HUGE hypothetical.

[Unknown User]

Posted: 7/4/06 at 2:02pm

And there is also the issue of mmonogamy. When does exclusivity in a relationship start? We all know that we've dated and sometimes you decide you don't want to sleep with anyone else and the other person has not come to that point yet.

And these things are not always openly discussed.

And I think there is a bit of homophobia involved in all of this. Just a bit.
Updated On: 7/6/06 at 02:02 PM

[DayDreamer]

Posted: 7/4/06 at 2:05pm

I think exclusivity in a relationship starts when both parties agree to it. Just because one person decides on their own that they're not sleeping with anyone else, it doesn't necessarily mean the other person feels the same.

[NYadgal]

Posted: 7/4/06 at 5:29pm

This is not just an issue for gay men.

I was in a monogamous, committed relationship for 15 years. Or so I thought. I was no longer practicing 'safe-sex', because I truly didn't believe I had to. I have always taken responsibility for protecting my own health. I was lied to about the status of my relationship, and was therefore denied the opportunity to take the precaution I would have taken. After so many years of believing that I was not at risk, I am now being tested.

Yes. I think a person should be held responsible for their actions. Personal responsibility is a VERY big issue for me.