So prosecutors thought they had a solid case when they charged a Manatee County woman who failed to tell her female partner that she was HIV-positive. A Tampa appeals court, however, threw out the case, ruling that “sexual intercourse” could take place only with a penis and a vagina — in other words, between a man and a woman. But last month, a South Florida appeals court issued a conflicting opinion, upholding charges against a Key West man whom police had accused of lying about being HIV-positive to his male partner. The ruling more broadly defined intercourse, finding that it did not require opposite genders or specific body parts.The Florida Supreme Court is likely to end up resolving the clashing opinions, which are being closely monitored by gay-rights advocates.
On the one hand, they support legal rulings that convey equal status to same-sex relations — but they also oppose the HIV disclosure law, arguing that the long-controversial statute stigmatizes people infected with the virus. “It’s a progressive ruling, but the law itself is draconian,” said Norm Kent, a South Florida activist and criminal-defense lawyer who publishes the South Florida Gay News. Scott Schoettes, the HIV Project Director for the gay-rights group Lambda Legal, said it was hard to see “a silver lining” in a disclosure law he called unjust.
“It’s nice to have courts recognize relations between two men,” he said. “But it would be nice to recognize granting us our rights in an affirmative sense, not just when it comes to criminalizing our sex lives.” In Florida, it is a third-degree felony — punishable by up to five years in prison — for a person who knows he or she is HIV-positive to have sex with someone else without informing them. The law came into effect as part of the “Control of Sexually Transmissible Disease Act” that Florida lawmakers passed in 1986 as fears about HIV, which can lead to AIDS, were growing nationwide. The disclosure law also covers other sexually transmitted diseases, such as herpes, gonorrhea and chlamydia — but HIV is the only one that carries a felony charge. Thirty-four U.S. states and territories have passed similar laws. Detractors are widespread. In February, President Barack Obama’s Advisory Council on HIV/AIDS issued a resolution calling criminalization of HIV an “unjust, bad public health policy” that “is fueling the epidemic rather than reducing it.”
The council pushed for states to repeal or revise the laws. Critics say the laws ignore scientific data that show HIV is rarely transmitted through oral sex or digital penetration, and that the risk is often considerably low even in cases of vaginal or anal sex. “All of these laws are just based upon misconceptions about how easy it is to transmit HIV. It’s not that easy,” said Schoettes, a lawyer who believes the laws should be altered to include proving “intent” and that a victim actually contracted the virus.The law came under scrutiny in 2010, when the Second District Court of Appeal in Tampa took up the case of an HIV-positive Manatee County woman charged with having oral and digital-penetration sex with another woman.
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