HIV-1 disclosure laws? Homosexuals are SOL in FL

I have some surprising news for my homosexual ERV readers: In the state of Florida, youre all virgins!

The judges found that because the law referenced 'sexual intercourse' that it could only be applied to heterosexual activity since intercourse is only defined as "the penetration of the female sex organ by the male sex organ."

Why the hell am I writing about this? Some stupid backwater judge or politician trying to regulate sex? Nope...

Because the wording of this law is being used to overturn convictions of individuals who did not disclose their HIV+ status to their sexual partners:

An appellate court in Florida has ruled that the state's HIV disclosure law can only be used to charge heterosexuals, saying that the law does not apply in the case of a woman accused of having sex with another woman but failing to disclose her HIV-positive status.

The judges found that because the law referenced 'sexual intercourse' that it could only be applied to heterosexual activity since intercourse is only defined as "the penetration of the female sex organ by the male sex organ." They overturned the woman's conviction.

The ruling has already had an impact on a case in Treasure Island, where the Pinellas-Pasco State Attorneys office threw out a case against a gay man charged with failing to disclose his HIV-positive status to his partner of four years.

So, if I have sex with a guy who does not disclose his +status and he infects me with HIV-1, I can have him criminally prosecuted.

If a man has sex with the exact same guy and is infected with HIV-1, he is SOL.

And vice-versa, guys are protected from chicks, but Im not protected from chicks. At least in Florida.

You know, its real cute when radical religious politicians step up to their church pulpits to talk about how awesome heterosexuals are, but for them to either purposefully or carelessly prevent homosexuals from having the same protection under the law, in a life-and-death/life altering situation like HIV-1 infection, is shockingly low, even for them.

This law in Florida needs to be changed ASAP.

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Shouldn't this be easily tossed under the equal protection clause?

Presumably you could only have him prosecuted if he infected you via penile-vaginal sex. If he infected you via any other sexual act (e.g. oral, anal) you'd be SOL too, right?

I'd hate to think the law was worded that way intentionally.

Florida has a lot of aw-shucks country boys who don't cotton to anything that can't be explained on a bumper sticker, backwater fundamentalist Bible thumpers who think everything is a sign from an angry bronze-age God, petty chiselers who would be selling slaves if it was still allowed, and suck-up-kick-down politicians who regularly fellate leaders of all four groups to further their careers.

You see, I live in Florida, and it is clear that the state is controlled by people who want to take it back to 1930 when all the above groups had free reign, people knew their place, and you could blame anything that went wrong on uppity darkies and meddling Yankees.

qetzal-- Youre quite right.

Oral/Anal doesnt even need to happen.

The perp just has to say it happened-- Their word vs the victims word, reasonable doubt, case is out the window.


Expanding on qetzal's point: Does this mean certain actions which most people would consider rape do not meet the legal definition of rape in the state of Florida? The article implies that the statute in question in this case references the definition of intercourse elsewhere in Florida's statutes--do the rape statutes specify the same reference, or do they additionally define other actions as rape?

In case it's not clear: I agree that this loophole needs to be closed.

By Eric Lund (not verified) on 23 Aug 2011 #permalink


I don't know the answer to your question, but I think I did find the Florida HIV statute in question. Looks like this isn't just an issue for HIV. The same limitations would apply to syphilis, genital herpes, chlamydia, etc. If you knowingly transmit them through penile-vaginal penetration (aka "sexual intercourse" as defined by the State of Florida), it's a crime. If you transmit them by any other type of sexual contact, you're apparently off the hook.

Interestingly, the only place I could find a formal definition for "sexual intercourse" is here. Apparently, gay or lesbian sex between siblings isn't incest in Florida! Who would've guessed?

As a longtime contact tracer (partner notificator-type) - in the prevention business, I have to agree with Peter @1. Really fucked up.

Esp. when considering disproportionate rates of HIV & STI among MSM, to use pubic health acronymese. That's really, really fucked up.

I'm not easily surprised anymore, but this did it.

By sasqwatch (not verified) on 23 Aug 2011 #permalink

From a common sense aspect, that is definitely FUed.

Whether or not the judge is off his rocker would depend on whether there is a legal definition of intercourse. If there is no legal definition, then I think the judge has made a major FUBAR by imposing his own definition...which now makes that one legal. Jeez. I assume that the bill itself didn't define what it meant by intercourse and meant, but didn't clearly state, that it meant any sexual contact.

At any rate, the Florida legislature needs to get off their collective butts and fix this ASAP.

...also consider that confidential STD services are drying up all over tarnation, and along with that, the ability for any law to mean anything in practice.

If the only thing left in your state is laws and police, not public health surveillance and control, it all seems like a moot point. That's what happened here in Colorado Springs, which used to have one of the best STD programs in the world. All gone now, without even the ability to resurrect it if funds became available [no institutional memory - all gone].

So in practice, what laws happen to be on the books now matters little. The agency that confidentially maintained that info is no more. (or more precisely, being relegated to the State level in Denver - who will inherit a little extra money for typing up a smattering of case reports) Surveillance gone, control gone, legal teeth gone, too.…

Sleep tight.

By sasqwatch (not verified) on 23 Aug 2011 #permalink

What about assault? Wouldn't the introduction of HIV count as assault? And I still believe the equal protection clause would invalidate any distinction like he one stated in the post.

You know, its real cute when radical religious politicians step up to their church pulpits to talk about how awesome heterosexuals are, but for them to either purposefully or carelessly prevent homosexuals from having the same protection under the law, in a life-and-death/life altering situation like HIV-1 infection, is shockingly low, even for them.

Especially given how they spend so much effort warning us that any kind of sex other than the PiV variety covered by the statute is guaranteed to give you HIV on the first try.

By D. C. Sessions (not verified) on 23 Aug 2011 #permalink

IANA Florida lawyer but another news article pointed out that the state's rape laws are not narrowly limited to "sexual intercourse". And there may well be other criminal statutes that someone, who knowingly had unprotected sex while HIV +, could be charged with. But the appeals court can only deal with the charges in front of them.

I wonder what other side-effects this law might have. Does this mean I can shag out in public with some random guy? Is this a place where we can start marketing gay pornography heavily, on primetime network tv? I mean, you know, after all, it's just two guys rolling around not having sex. Don't mind what's touching what, families, just enjoy the dance-like moves!

Oh sure, there are some downsides to the law, but I think we could seize onto this and have a field day with it.

Hell, if one designed a sufficiently engineering condom, public nudity couldn't even be charged since the whole of dude's junk would be fully sheathed while he's not having sex with another dude.

I bet that could get this law changed in a hurry.

And the heart attacks arising in the wake of rampant non-sex between gay guys might even change the entire voting demographic of the whole state.

Yes, there is much potential here - stop being so provincial about the whole petty issue of HIV transmission between all the wrong kind of people, Abbie. Sheesh!

Justicar: Nope.

From the Florida laws on public lewdness and indecent exposure:

"800.02 Unnatural and lascivious act."

"800.04 (a) "Sexual activity" means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose."

They covered their bases on that one, though it would have been funny as hell if they left themselves open to that sort of loophole.

@Woden - based on that definition, it looks like spanking my monkey doesn't constitute "Sexual activity". Good to know......Of course, I've never considered it an "Unnatural and lascivious act". Otherwise, I'm not sure I could do it so often.

cynical1, if it helps matters any, PZ apparently approves of wanking - proudly, gloriously, furiously, maybe even publicly?

Woden, from that definition, I could get a blowjob in public without fear of arrest so long as I manage to convince the giver that I've been bitten by a snake and the poison needs suction.

Apparently, secondhand (haha!) manual stimulation is legal. =^_^=

Apparently, Rebecca Watson's suggestions for a doll, fleshlight or water melon would also be legal in public.

Gosh, Florida is one permissive state for all the hype one hears of their prudishness.

Justicar: I think not, because they have penalties even for "lascivious" behavior, which covers every example you just listed. It's a vague word, and of the sort that conservative politicians love to add to laws.

I don't agree with these types of laws so I don't think it's bad that it is weaker than intended.

Most transmissions for HIV occur with someone who does not know his HIV status (viral loads are higher, no treatment to reduce viral load, inadequate prevention, most people are not that sociopathic). I think these laws would really only increase the stigma of HIV infection, reduce the number of people who get tested, and do nothing to reduce HIV infections.

Unfortunately, I can't find any study either for or against HIV disclosure laws. Since there are already places with these laws, there should be some research into their effectiveness before we keep them or enact them in other places.

I think you need to read the Florida law more closely, Statute 384.24. It says absolutely nothing about infecting someone with HIV, only disclosing your status and ONLY if you know it. In both cases in Florida that were thrown out, neither partner infected the other.

In your scenario about you and a guy having sex with the same man, you need to eliminate the part about where he infects either one of you, because that's not in the law. But you do need to add whether he knows he has HIV or not. If he doesn't know his status, he can screw every woman in the state and not be held accoutable whether he infects them or not. But once he knows his status, then he must tell. And even if he does tell, couldn't an evil woman claim he didn't tell?
Seems that the best defense against this law would just not get tested and not know your status. But that would be thinking with your penis instead of your head and we know men don't do that (sarcasm).

1.2 million people in the USA are infected with HIV and 20% don't know it. In the gay community that rises to 44%. People who get tested and put on treatment decrease the chances of them spreading HIV by 96%. That's the way to stop the spread of the disease not putting people in jail.

We should do everything we can to get people tested and on treatment. Criminalizing the people that know their status only discourages people from getting tested.

By Pozitive Attitudes (not verified) on 23 May 2012 #permalink