OPINION

Opinion: Charlie Sheen entangled in 'he said/she said' provision of HIV laws

Former "Two and a Half Men" star Charlie Sheen, right, is interviewed by Matt Lauer, Tuesday, Nov. 17, 2015 on NBC's "Today" in New York. In the interview, the 50-year-old Sheen said he tested positive four years ago for the virus that causes AIDS. (Peter Kramer/NBC via AP)

Former "Two and a Half Men" star Charlie Sheen, right, is interviewed by Matt Lauer, Tuesday, Nov. 17, 2015 on NBC's "Today" in New York. In the interview, the 50-year-old Sheen said he tested positive four years ago for the virus that causes AIDS. (Peter Kramer/NBC via AP)  (AP)

HIV: The most feared, incurable and deadly sexually transmitted virus has made its way to the front pages of gossip magazines and newspapers following Charlie Sheen’s public revelation that he is carrying it. 

HIV can also be contracted in other ways – needle sharing, a blood transfusion, or sharing of other bodily fluids and tissue – but the actor has suggested he contracted the virus through sexual behavior.

NBC's Matt Lauer asked, “Have – have you been involved, you know, if you look at the CDC website and they talk about the transmission of HIV, they talk about risky behaviors. Would it be fair to say that you have been involved in all of those risky behaviors?” And Sheen responded, “Negative. No, you’re talking about needles and that whole, that whole mess? Na, definitely not. No.”

There is the question as to how a state proves that a person did not reveal their status? It becomes a he said/she said case. Does this mean that the states should enact legislation that makes HIV-positive people obtain signed disclosure forms before any engaging in any sexual contact?

- Tamara Holder

But now there is speculation that Sheen may face criminal prosecution for not telling his sexual partners of his HIV status, even if he did not expose them to HIV. At least one of them is claiming she was never told, yet he denies it.

Lauer asked, “Have you, since the time of your diagnosis, told every one of your sexual partners, before you had a sexual encounter, that you were HIV+?” Sheen responded, “Yes I have.” Lauer probed, “No exception?” And Sheen confirmed, “No exception.”

According to the Center for HIV Law & Policy, 36 states and U.S. territories have HIV-specific criminal laws, and 29 of those states have felony laws. Between 2008-2013, at least 180 people were prosecuted, and by June of 2015, the total number increased to 226 cases.

Pro Publica reports that between 2003 and 2013, 19 states prosecuted 541 cases but in 56 out of 60 cases, states prosecuted HIV-positive people who did not transmit the virus to their partner.

Nick Rhoades, an HIV-positive man who was on anti-viral medication (like Sheen), and used a condom was criminally charged for not telling his partner he had the virus. His partner did not contract HIV but Rhoades was still sentenced to 25 years in prison because he “created a situation that was just as dangerous” as a person who committed an armed robbery.  

California, where Sheen lives, has three HIV-related criminal laws.

It is a felony if a person knows he has HIV and has unprotected sex without a condom, exposing the other person to HIV. Simply knowing that one has HIV is not enough to prove specific intent; however, “exposure” to HIV does not require that the partner in fact contract HIV.

California also has a misdemeanor crime punishable with up to six months in prison and a $1,000 fine if a person with HIV willfully exposes another person to HIV. 

As recently as March of 2015, San Diego charged an HIV-positive man for this crime, for the first time in the California’s history, after the partner of 30-year-old Miguel Guerra learned he had contracted HIV. The partner claimed Guerra did not tell him of his status.

The intent of these laws across the country is simple: If you have HIV, you must tell your partner or you may be sentenced to prison.

There are several reasons why many oppose criminalizing those with HIV.

Some experts argue that overly harsh HIV exposure laws will prevent people from being tested altogether.

Across the country, sentences range from 5-26 years in prison. In California, HIV exposure laws allow sentencing up to 8 years in prison; whereas a person who commits vehicular manslaughter while intoxicated can receive up to just one year in prison. 

Some states, like Tennessee, even require sex offender registration. “What you don’t know won’t hurt you,” the old adage goes. If you don’t know you have HIV, you cannot be accused of intentional transmission.

There is additional concern that increasing our prison population with HIV-positive inmates creates another public health epidemic. According to the Center for HIV Law and Policy, approximately 1/7 inmates with HIV pass through a correctional or detention facility every year. “At the end of 2010, state and federal prisons held over 20,000 people living with HIV. The rate of HIV among prisoners is 5 to 7 times that of the general population,” according to the center.

Except for those serving life sentences, every HIV-positive inmate will eventually be released from prison and enter back into society. Incarceration does not prevent the spread of HIV. In fact, it may increase the spread. If inmates do not receive proper healthcare in prison, upon release, they may be more contagious.

Then, there is the question as to how a state proves that a person did not reveal their status? It becomes a he said/she said case. Does this mean that the states should enact legislation that makes HIV-positive people obtain signed disclosure forms before any engaging in any sexual contact?

Aside from people who intentionally transmit HIV to another, states must think through the implications of criminalizing consensual sexual behavior. And individuals must take personal responsibility for their voluntary sexual acts, especially when they are engaging in high risk behavior like prostitution with high risk partners, like Charlie Sheen.

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