Behind STI Disclosure and the Law
In 2017, a $20 million lawsuit bubbled up around famous singer Usher after he neglected to mention his herpes-positive status to three partners before sexual contact. Though the lawsuit has since been resolved, it raised questions about whether, and when, to disclose your sexually transmitted disease (STD) status.
When is it a legal obligation to disclose versus an ethical one? Do STD laws help or hurt?
In the United States, federal legislation exists to govern avenues of potential transmission, such as blood donations. However, the criminalization of exposure is primarily left to individual states. State legislatures decide what behaviors to criminalize—such as intercourse or needle-sharing—and whether to dole out punishment for the intentional transmission of a sexually transmitted disease.
Much of the state legislation in this area is HIV-specific. According to the Centers for Disease Control (CDC), 35 states criminalize HIV exposure. There are states with STD sentence enhancement laws—which means longer sentencing for those with prior convictions—while others have general STD/communicable disease laws, exposure laws and health and safety policies. Some have no laws at all.
Jenelle Marie Pierce, a certified sexuality educator, executive director of The STI Project and spokesperson for Positive Singles, educates people extensively on the subject of STD disclosure. Pierce noted that not disclosing, "in some places, is a criminal offense and in places where it is not a criminal offense, it can be a civil offense." Civil cases are generally private disputes between people, whereas criminal cases involve prosecution by the government.
Which sexually transmitted disease someone transmits matters in legal outcomes, too, as easily curable sexually transmitted infections tend not to have as weighty outcomes as HIV or herpes in a court of law.
When someone with a confirmed positive STD status fails to convey that information to a sexual partner before sexual contact, it is considered intentional transmission. According to STD Check, it's typically illegal civilly and criminally to knowingly transmit a sexually transmitted disease. The crucial factor is whether STD transmission is willful and intentional—proving that someone intentionally transmitted a sexually transmitted disease can be a tremendous legal challenge.
By California's Health and Safety policy, among others, this means a court of law has to prove a person knew they had an infectious or communicable disease and acted with intent to transmit it to an uninformed partner. Up until 2017, this act was considered a felony. However, it has since been reduced to a misdemeanor, in line with other public health codes, according to The Center for HIV Law & Policy.
If state law doesn't prosecute for STD transmission, a person might be liable for damages in a civil lawsuit by way of negligence or civil battery to cover damages such as medical expenses for the partner who contracted the STD. Civil battery means the sexual contact was nonconsensual.
The legal definition of negligence is "behavior that fails to meet the level of care that someone of ordinary prudence would have exercised under the same circumstances."
"You're negligent in failing to inform your partner that you have an STD and you caused damages," said Rivers J. Morrell, III, an STD transmission civil attorney. "You were negligent when you ran the red light, and you caused damages."
However, proving negligence is the hard part, said Morrell.
"Number one, you can get medical records that show that there's a text message from the person who transmitted it. Maybe the person was taking medication to address the sexually transmitted disease that they have, [but] these are not easy cases," he explained.
Criminalizing STDs does more harm than good
These policies exist for prevention, but research indicates that they don't always produce their intended outcomes. Many HIV laws came out of the early years of the HIV epidemic, which began in the early 1980s when there was little significant research on HIV transmission. According to the CDC, under those laws, some activities that cannot transmit HIV are still criminalized, such as spitting.
Criminalization typically hurts people already at risk. According to The Center for HIV Law & Policy, HIV criminalization disproportionately affects Black men and women, gay men and transgender women.
Sometimes, the issue of nondisclosure is more complex than a policy can account for. The Center for HIV Law & Policy explained in a statement to Giddy how because of this, HIV criminalization hurts women.
'A person who is disclosing their status is at risk physically, emotionally and legally.'
"[Criminalization] creates a tool for control by abusers who threaten prosecution of women who want to leave abusive relationships; complicates custody disputes and pregnancies; imprisons women for nondisclosure without regard for the complex reasons, such as fear of violence, that disclosure may not be advisable; and over-targets sex workers against whom condom possession may be used as evidence of intent to commit a crime."
Instead of addressing possible reasons that make disclosure challenging (like STD stigma), criminalizing HIV "compounds the difficulties of learning how to safely disclose HIV status and maintain safer sexual relationships," wrote The Center for HIV Law & Policy.
Lambda Legal noted HIV criminalization laws might reduce someone's likelihood to disclose their status because if someone goes to jail after disclosing, they may be less likely to disclose in the future.
A disincentive to get tested
Criminalization "contributes to stigma and harm," Pierce added. "A person who is disclosing their status is at risk physically, emotionally and legally, and I care about their well-being just as much as I care about the person who doesn't have or doesn't know they have an infection."
No studies indicate that criminalizing HIV is an effective tool for reducing transmission. Lambda Legal additionally wrote that these kinds of laws create a disincentive to testing: If you don't know your status, you won't be prosecuted.
Though several states have reformed their laws, many others have yet to catch up to current evidence-based research. In Arkansas, for example, it's considered a misdemeanor not to disclose a positive HIV status at the dentist.
What keeps people from disclosing their status? Pierce said that ultimately, the failure to communicate is caused by shame. "We are not given practical examples of how to have regular conversations with our partners around our sexual health."
After all, sexually transmitted diseases are matters of sexual health, which should be taught in classrooms, not courtrooms. If the problem is failure to disclose, it's worth a deep dive to discover the psychology of why people fail to do so. There is no evidence that criminalizing people with any STD prevents transmission, but safer sex practices taught in comprehensive sex ed classes do.