LA TIMES Editorializes in Favor of HIV Liability Rule Change

The Los Angeles Times editorial page on Friday commented on the controversial California Supreme Court decision issued Monday expanding the number of people liable for civil penalties under the state's HIV transmission statute.

With this decision, California's civil statute on this issue now makes more sense than its criminal code. Unlike most other states, transmitting a disease in California is a crime only if someone knowingly passes along the virus "with the specific intent" of infecting a partner. That's so hard to prove that the law has reportedly brought only two convictions.

The California Supreme Court made the right decision in expanding the definition of liability in civil court for those who put others at unnecessary risk of contracting HIV. Hopefully, this will entice the state to update its outdated criminal penalties as well.

I find it hard to understand why the editorial page of the Times thinks it knows better than the Legislature and the state's HIV/AIDS advocates what the legal standard should be for California's HIV transmission statutes, both civil and criminal. Just last year there was a bill in the California Legislature by Republican State Senator Jeff Denham (SB 235) which would have removed the "specific intent" standard from the criminal statute but it failed to get out of committee. The California Supreme Court's decision basically made anyone who engages in unsafe sexual practices liable for civil damages regardless of whether they know their own HIV status or not. The question that comes to my mind is about the unbalanced nature of this liability, which the Times seems to support also. In any sexual act there are two (at least! ) people involved. If unsafe sex is happening in that context, why aren't both parties equally responsible for what happened?

Obviously, prior to sex both parties should be cognizant of their own HIV status and request information about the HIV status of the other partner. By putting the onus of responsibility only upon one party (the one of them who has engaged in risky sexual practices within the last six months of their most recent negative HIV test result) as the Court and the Times want to do, seems unfair to me. Even in my scenario where both partners are as forthcoming as possible there will always be "asymmetric information" (as economists like to say) and the optimal way to level this disadvantage is to choose the most pessimistic scenario: assume all sexual partners are HIV+. Clearly in that case safe sex is the only option which makes sense.

The problem with this approach is that it doesn't acknowledge reality: people who are engaging in sex can intellectually say "treat everyone as if they are HIV+" but they know that in reality obviously everyone is not. (Although, in many urban settings CDC statistics show as many as 46% of Black gay and bisexual men over the age of may be. In that case, depending on your sample size and preferences/predilections it could be very true that everyone you are having sex with actually is HIV+, and probably doesn't know it.) This is the dilemma faced by safe sex and HIV prevention advocates. It seems to me by declaring that there is more liability for all people who practice unsafe sex will decrease the resolve of people to practice safe sex, and instead use some kind of state sanction as a fallback excuse for why they can "play raw just this once." Thus the Times editorial, the Denham bill and the Supreme Court decision seem to me to make things more difficult not less for HIV prevention advocates.