Over at Ian Cromwell’s blog, his regular guest poster is having a go at the idea that individuals should be held criminally responsible for disclosing serious medical conditions that they might pass on to their sexual partners. I was going to comment at length over there, but remembered Cromwell has a nasty and unethical habit of editing comments with which he disagrees, so it seemed better to write up my thoughts here in a safe space.
It is somewhat difficult to decode the reasoning of the post, but it seems to be that the moral and legal responsibly should rest entirely on the uninfected partner to inquire whether their prospective lovers are carrying any potentially lethal diseases. At that point, and only at that point, the infected partner is obligated to respond truthfully. I’d like to argue that this is a very dangerous idea, and that a far better approach would be mutual disclosure for the sake of fully informed consent. Sex is an intimate and inherently risky venture, and it makes sense when going in to know all the risks, not in the general sense of background probability based on population prevalence, but in the more specific sense of what prospective partners are bringing to the conjugal bed.
Consider take a fairly non-controversial example, free from any viruses or associated stigma. Suppose that two heterosexual teenagers are about to enthusiastically lose their virginity to one another on prom night. The young man, being somewhat responsible, has packed a couple of high-quality condoms, but the young woman considers these unnecessary, because she believes (quite wrongly but not quite uncommonly) that no one can get pregnant their first time. Does the young man, aware of her ignorance in this matter, have a moral duty to inform the young woman that he is in fact capable of getting her pregnant on the first go? If he does get her pregnant, should he be held liable for child support, or should she bear the burden alone, because she failed to fully shoulder the burden of prophylaxis on her own?
To take a more on-point real-world example, closer to home, consider the fascinating and bizarre case of Robert Richardson. (Full disclosure: Rob was once a friend of mine. We used to hang out in OKC before he moved back to Kansas; years before that we were in the same squadron at the Air Force Academy.) Rob allegedly had sex with two women in Kansas, without using protection or disclosing his condition:
Interestingly, at the preliminary hearing, the State presented evidence that M.K. and E.Z. did not know that Richardson had HIV when they had sex with him; that Richardson did not use a condom; and that Richardson had falsely represented to E.Z. that he was free from sexually transmitted diseases. These are prime examples of proven circumstances that could support an inference that Richardson intended to expose M.K. and E.Z. to HIV. Inexplicably, the State chose not to present any of this information at trial, and those facts were not included in the parties’ stipulation.
In the end, Rob got off the hook because the state prosecutors “inexplicably” chose to pursue the case without bringing any evidence of specific intent (to expose people to a life threatening disease) into his trial. Had they done so, with convincing testimonial evidence from the two victims, then probably he would still be in prison to this day. The relevant Kansas statute prohibits “an individual who knows oneself to be infected with a life threatening communicable disease” to knowingly “engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease” and this is precisely what happened here, if the testimony of M.K. and E.Z. is to be believed.
What the Supreme Court of Kansas gets brilliantly right here is that the guilt of the defendant should hinge (among other things) on the accused having specific intent to expose his sexual partners to a life-threatening communicable disease. While the prosecutors argued that “condom use and disclosure of the defendant’s infection are irrelevant to proving an ‘intent to expose'” the court disagreed on both counts, reasoning that both of these practices would indicate an intent to protect rather than expose one’s partner. Intent might not be magic in certain academic fields, but lawyers and courts still take mens rea very seriously.
In the case, the court was effectively saying that people who have any life-threatening communicable disease (they noted the example of a particularly virulent influenza) can most likely avoid conviction under this law by demonstrating that their partners were fully informed and that they took reasonable steps to avoid exposure. They have thus struck a middle path between the extreme views of the state prosecutors (HIV+ individuals mustn’t ever have sex with HIV- individuals) and the extreme views of Cromwell’s guest blogger (HIV+ individuals have no affirmative duty to disclose their condition to their HIV- partners).
The reason I bring up Rob’s case in particular isn’t merely that it is close to home, but because it goes to the question of social stigma. We knew that Rob was positive when he lived here, but it never affected how we thought of him or treated him. His girlfriend knew he was positive, and there was never any indication that he was less than ethical in his private life. It is only when we found out what happened with the women in Kansas that we thought any differently of him, and even then I didn’t want to believe it at first.
The law doesn’t cause the stigma, however. Had there been no law in place, and no prosecution whatsoever, we still would found out, and experienced the horrible sensation of realizing that someone you thought you knew turns out to be capable of total indifference to the health and well-being of others. Exposing people to serious health risks is stigmatized (and often criminalized) for the obvious reason that it leads to suffering and death some fraction of the time. As a humanist, and a consequentialist, this seems to me just as it should be. Perhaps someday moral education will take the place of crude penal deterrence, but until that day, we’ll have to make due.
