It Is No Longer a Felony to Expose Sex Partners to HIV in California [OPINION]

Visual of HIV

Ukrainian designer Alexey Kashpersky creates visual renderings of the HIV virus.

Think back to the last time you were sitting in a room full of minimally spaced people and someone began coughing a staccato litany of their cold virus directly into the air. Maybe they were even kind enough to expectorate into their hand just before grabbing the doorknob on their way out.

Or what about that time you were driving in a 45-mile-per-hour zone behind the guy in the red 1998 Honda Civic. Remember when he decided he wanted to make a right turn— without a turn signal? Remember the panic you felt as you hastily mashed your breaks, trying to slow down just enough to compensate for his last-minute decision without spilling your coffee?

Oh, and we can’t forget that one time you walked into that single bathroom stall right after someone who had just used it before you. Thankfully, there was no “drizzle” left on the toilet seat.

But you didn’t notice the tragic absence of toilet paper until after you “finished your business”.

I’m sure you remember how maddening these moments were. Why? Because I remember how maddening these moments were. If it’s happened to me, chances are that it’s happened to you.

Every time I experience one of these scenarios, two thoughts instinctively come to mind:

THOUGHT #1: “How can someone be so SELFISH?!?!”

THOUGHT #2: “I can’t let myself be the person who does this to someone else. I just can’t.”

The reality is that most if not all people think “THOUGHT #1” without any help. And that’s good— it’s a good thing that people are able to recognize selfish behavior in others. The more we recognize selfishness in others, the more we’re capable of avoiding selfishness in ourselves and subsequently engaging in what’s called prosocial behavior.

Prosocial behaviors are those intended to help other people. Prosocial behavior is characterized by a concern for the rights, feelings, and welfare of other people.”

But the problem is that engaging in prosocial behavior requires that we all make it to “THOUGHT #2” when these scenarios happen— “THOUGHT #1” isn’t enough. If we want to avoid being the guy who hacks into his hand just before grabbing the break room doorknob, the guy who mashes on his breaks without a turn signal, or the guy who leaves the single-stall bathroom without telling the next guy there’s no toilet paper, we have to first think to ourselves, “I can’t let myself be the person who does this to someone else. I just can’t.”

But many of us don’t engage in prosocial behavior— not without an incentive, a little motivation, if you will.

It would seem that California’s state government has completely misunderstood this element of human behavior: that not everyone will engage in prosocial or non-selfish behavior without an incentive to do so. And as they’ve misunderstood human behavior so profoundly, they’ve convinced themselves and much of the public that they’re justified in lowering the penalty for knowingly exposing intimate partners to the HIV virus.

In early October, California Gov. Jerry Brown signed new legislation, SB 239, that will go into effect on January 1, 2018. Under the new law, Californians who are found guilty of infecting others with the HIV virus will be convicted of a misdemeanor crime and sentenced to no more than 6 months in a county jail.

Democratic Sen. Scott Wiener supported Brown’s new law arguing that the previous law was out of date. In a news release, Wiener explained his rationale:

“HIV should be treated like all other serious infectious diseases, and that’s what SB 239 does. We are going to end new HIV infections, and we will do so not by threatening people with state prison time, but rather by getting people to test and providing them access to care. I want to thank Governor Brown for his support in helping to put California at the forefront of a national movement to reform these discriminatory laws.”

The intentional transmission of other communicable diseases like SARS, Ebola, and tuberculosis, is a misdemeanor crime in California.

Supporters of SB 239 have voiced concerns that the current law may discourage Californians from getting tested for HIV. Knowingly exposing a person to the virus during sexual activity is currently a felony punishable by up to eight years in prison. But without an HIV test, Californians can avoid being charged by claiming ignorance even if they expose intimate partners to the virus.

Republican Sen. Joel Anderson disagreed with Wiener and SB 239 supporters during a legislative floor debate:

“I’m of the mind that if you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regiment of medications to maintain any kind of normalcy, it should be a felony. It’s absolutely crazy to me that we should go light on this.”

And “going light” seems a reasonable description.

It’s worth noting that the intentional transmission of the HIV virus has been the only communicable disease crime punished with a felony in California. But it’s also worth noting that HIV has a distinct transmission method. While other communicable diseases like SARS and Ebola are usually transmitted via the coughs, sneezes, and saliva of infected persons, HIV can only be transmitted through blood, semen, pre-seminal fluid, rectal fluids, vaginal fluids, and breast milk. These are fluids shared only between people who are intimate with one another. While communicable diseases like SARS and Ebola only require proximity to be transmitted, the HIV virus requires trust.

And perhaps this is one of the reasons why 22% of the people who contract the HIV virus also battle depression. When people are close enough to share blood, semen, or breast milk, they trust one another to have taken well enough care of themselves to avoid transmitting any life-altering diseases during such an intimate exchange. This is why the transmission of HIV— intentional or not— bears with it a betrayal of trust that can leave people feeling worthless and hopeless. The intimacy required for transmission of the HIV virus puts it in a category all its own.

Perhaps the people who wrote the current California law realized that a person who knowingly transmits HIV to another person doesn’t just transmit the need to spend a few days in the hospital and a 10-day antibiotic regimen. No, a person who transmits HIV transmits an incurable illness that can cost $379,000 to treat for a lifetime. He or she transmits a lifetime of rejection from people who still don’t fully understand the virus, a lifetime of bearing the risk of infecting others.

Regardless of Sen. Wiener’s rationale, 6 months of jail time will never compensate for a lifetime.

Now, of course, not all people who live with the HIV virus are selfish, malicious people who want to intentionally infect others. That’s not what this discussion asserts. There are millions of good, selfless people who live with the virus. They are creative, empathetic, honorable, hilarious, attractive, and intelligent people. And, what’s more, they inform their intimate partners of their status and even speak publicly about their status in order to educate others.

People living with the HIV virus, as a community, have been demonized more than enough. They did not ask for their diagnosis and their diagnosis should not define them. This discussion does not affirm the belief that all people living with the HIV virus are “bad” or “selfish” people. That needs to be clear.

There are, however, people who engage in selfish behavior while coincidentally carrying the HIV virus. While this isn’t the norm, it’s a fact Gov. Jerry Brown and his supporters cannot ignore.

Take 33-year-old Valentino Talluto for example. He was recently sentenced to 24 years in the Italian prison system for having unprotected sex with at least 53 women after being diagnosed with the virus in 2006. Talluto did not inform his intimate partners of his status and ended up infecting 30 of them as a result of his selfish behavior. That’s 30 lives changed because one man’s desire for sexual pleasure was more important than protecting others from a life-altering virus.

Nadja-Benaissa

Nadja Bennaissa is pictured in a photo taken by Michael Danner.

Nadja Benaissa, member of the critically acclaimed all German Pop band No Angels was convicted of grievous bodily harm after discovering her positive status and having unprotected sex with three men. Her actions resulted in one of her partners contracting the disease.

Nushawn Williams from New York infected at least 10 women after learning he was HIV positive. Two of those women transmitted the virus to their newborns during labor.

Talluto, Benaissa, and Williams are all people whose reputation, ego, and desire for pleasure were more important to them than the lives of their intimate partners. They cared more about keeping their diagnosis a secret, about avoiding rejection, more about enjoying sexual intimacy than making sure their actions didn’t inalterably change someone else’s life. These are the behaviors California seems to have forgotten about. These are the behaviors from which California has neglected to adequately protect its citizens.

The law has several functions in society; among them are the maintenance of order, the resolution of disputes and the protection of liberties and rights. One of those functions is not, however, the reduction of stigma. That is what public programming, education programs, and even journalism is for— not the law. And, of course, I wholeheartedly support the continuation and increase of current non-legislative recourse being taken against the spread and stigma of HIV.

But SB 239 tragically fails to fulfill the most relevant function of the law: it has failed to appropriately establish a standard of prosocial behavior.

Some people need the judgmental looks of their friends to motivate them to cover their mouths when they cough. Some people need to be flipped off by drivers-by when they forget to turn on their turn signal to motivate them to use their signal the next time.

And some people living with the HIV virus need the law to motivate them not to intentionally infect others. They need the law to communicate to them, “this behavior, the act of engaging in sexual behavior without informing your partner of your status, can cause significant damage and loss. Therefore, it is intolerable and punishable by sentencing that is more severe than sentencing related to other communicable diseases.”

Prosocial behavior doesn’t directly benefit the doer and that is why it often needs incentivizing.

If more governmental officials like Gov. Jerry Brown fail to properly establish prosocial behavior as the standard— especially in high-risk interactions like engaging in sexual activity— more and more citizens will have to deal with the risk, consequences, and the damages of other people’s selfishness.

The hope that people will willingly demonstrate concern for the rights, feelings, and welfare of their intimate partners isn’t always enough, California.

Sometimes we need the law to set standards that protect us from each other and ourselves.

This article was originally published on Medium.com.

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