Risky Sex: Unique Concerns for People Who Test Positive for HIV
A positive test for HIV can give "risky sex" a whole new meaning.
"Paul," a thirty-nine year old gay New Yorker and a recent HIV Law Project client, was devastated by the news that he is HIV positive. After the initial shock, he obtained medical treatment, joined an HIV support group, and began learning how to live with HIV. One evening in 2007, "Tom," an acquaintance of many years, came to Paul's house and they had anal sex (with Tom on top) over the course of the evening and the next day. This was Paul's first sexual experience since his HIV diagnosis. The couple didn't discuss HIV serostatus or use condoms.
Later that day, Paul (encouraged by his support group to disclose his status) telephoned Tom and asked him if he was HIV positive, disclosing that he himself was. Paul replied that he wasn't HIV positive but that he had dedicated himself to working with HIV-positive people as a health care provider. Because of his profession, Tom had a heightened awareness and understanding of HIV and its transmission.
Later, however, Tom became worried that he might have been infected with HIV. He told Paul, who took him to his doctor. Paul's doctor prescribed chemoprophylaxis to Tom—HIV drugs to reduce the risk that Tom's exposure to HIV might result in actual infection. Tom tested negative for HIV at that time and has continued to test negative.
Nonetheless, in 2008 Tom got himself a lawyer and sent Paul a demand for $1 million dollars in payment for Tom's mental suffering as a result of his potential exposure to HIV. Eventually, Tom sued Paul for claims ranging from battery to negligence and willful misconduct, although Paul didn't know about the lawsuit for many months because he never received proper notice of it.
When the HIV Law Project took on Paul's case, it moved to dismiss the case because Paul had never been served with the summons and complaint; and because the sex was consensual and Tom was not infected with HIV. The trial court in fact dismissed the case on December 9, 2009, because his lawyer failed to serve Paul with the summons and complaint. Tom's claims are now barred by the statute of limitations—he has run out of time to bring his case—and Paul can now rest easier.
However, the experience illustrates several things. Cases like Paul's are playing out below the radar, and likely most of these cases, as with Paul's case, never are reported anywhere. For this reason, it is impossible to say how many of these Tom vs. Paul-type of claims are being brought against people with HIV by former partners looking to punish non-disclosers, or to just cash in. It also demonstrates that even well-informed health care professionals engaging in behavior that puts themselves and, to an even greater extent, a partner at risk, believe that HIV and the failure to disclose turns a one-time lover into a criminal.
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