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Tuesday, December 01, 2015

World AIDS Day: Non-disclosure, Criminal Law, and Contracts

Many thanks to Prawfsblawg for hosting me this month!  I look forward to discussing my scholarship and sharing some of my favorite cat videos in the coming weeks.  I thought I'd start, however, on a more sober note:

Today is World AIDS Day, and I wanted to share two recent items about how the law handles--and mishandles--issues of HIV disclosure.  The first is this excellent, yet disturbing, write-up of the trial of Michael Johnson, a black, gay, HIV-positive college wrestler given a 30 year sentence for not disclosing his HIV status to his sexual partners.  Although Johnson maintains that he in fact disclosed his status, the article does a good job connecting his conviction to issues of racism, homophobia, and a widely held (and mistaken) belief that no one would have consensual sex with someone HIV-positive.  Johnson's case highlights an increasingly wide schism between highly punitive non-disclosure laws and today's reality of HIV treatment and prevention.  Current treatments allow HIV-positive people to have a life expectancy roughly comparable to the average US population and can reduce viral loads to undetectable, nontransmittable levels.  The best way to prevent the spread of HIV is through testing and treatment, yet criminalizing non-disclosure can deter people from getting tested and taking on the legal obligations that might come with their results.

The other item concerns, perhaps unsurprisingly, Charlie Sheen.  Much has been written about Sheen's potential legal issues in the wake of his HIV disclosure (see, e.g., here, here, and here), but I wanted to focus on one interesting detail.  Sheen reportedly required his sexual partners to sign a non-disclosure agreement, with liquidated damages of $100,000, covering any personal or business information obtained during time spent with him.  The NDA was exclusively leaked to the esteemed repository of legal research, InTouch Weekly.  My initial reaction to the NDA was in line with with most others: forcing young women to sign a contract before sex seems sleazy and censorial, designed to insulate potentially humiliating, abusive, or exploitative behavior.  After thinking some more about Sheen's circumstances, however, things may be a bit more complex and perhaps sympathetic.  As highlighted in the previous paragraph, Sheen's HIV status put him in a rather difficult bind.  If he complied with his legal obligation to disclose his status, he faced the high likelihood that his status would either be sold to the press or used as blackmail (which reportedly it was).  And even though Sheen had an undetectable viral load--and thus posed minimal risk of infection to his partners--he was at the very least arguably under a moral obligation to disclose that risk.  An NDA in these circumstances might thus be a way for Sheen to disclose his status while navigating the unique circumstance of being an HIV-positive celebrity.  This is certainly not meant to beatify Sheen, but it highlights an effort to use contract law to organize intimate affairs in the face of continued fear, stigma, and misinformation about sex and HIV. 

(By the way, aside from the bigger policy issues, Sheen's NDA is chock full of geekery: sexual consideration (see my student note!); arbitration clauses; copyright assignments (more here); and contracting for irreparable harm) 

In the spirit of World AIDS Day, I hope this post will encourage a few more people to learn about the current state of HIV and AIDS, both in the US and abroad.  Here are a few useful links I've come across in the past few weeks:

The HIV/AIDS pandemic, explained in 9 maps and charts

Things You Should Know Before Discussing Charlie Sheen's HIV Status

Pill to prevent HIV faces critics, stigma

 

Posted by Andrew Gilden on December 1, 2015 at 03:41 PM in Criminal Law, Culture, Intellectual Property, Science | Permalink

Comments

One more disturbing link to provide a sense of the political and cultural climate during the height of the AIDS epidemic in the US: http://www.vanityfair.com/news/2015/11/reagan-administration-response-to-aids-crisis

Posted by: Andrew Gilden | Dec 1, 2015 3:49:09 PM

I'm not sure I understand what's supposed to be sleazy about Sheen asking women to sign an NDA (regardless of his HIV status).

Generally when dealing with an older man and younger woman when we say he is acting sleazy we mean something like the man tricking or pressuring the woman into sleeping with him. But asking someone to sign an NDA is a cold glass of water to the face, I'd expect it makes it less likely that the young women will sleep with him, not more. It's the ultimate form of affirmative consent. How is that sleazy?

Posted by: Brad | Dec 3, 2015 1:06:32 PM

It could signal that he views sex w/ that person like a business transaction. And a routine one at that--he has the standard form ready to go. And I am not sure the affirmative consent connection holds--he makes no promises to respect his counterparty's wishes in any way.

Posted by: Andrew Gilden | Dec 3, 2015 5:05:09 PM

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