Preaching to the choir

According to at least one prosecutor's interpretation of the law, HIV+ people in Kansas can't have sex. No matter how consensual. No matter what precautions are taken. No matter how willing and informed the non-infected sex partner is.

Like many (most?) states, Kansas now has a law prohibiting the transmission of infectious diseases. The law was a response to horror stories of people infected with HIV having unprotected sex with lots of pretty, young women with the goal of spreading the virus to as many people as possible. Sure, that's bad behavior by those few, isolated individuals. (Although, come on ladies, protect yourselves. Don't let the guy get away with saying he doesn't want to use a condom. Didn't you take sex ed or watch any after school specials? In the words of one classic special, no balloon, no party!)

But I don't think the law was intended to criminalize any and all HIV+ individuals having sex. This article includes the statement that it is a felony for a person who knows he carries the virus to engage in sexual activity. As far as I can tell, that is the prosecution theory: that the defendant engaged in sexual activity knowing he could transmit the virus (no matter how remote the likelihood of transmission). It has to be because the "victim" has said he was fully aware of the defendant's status and that they did not engage in certain acts so as to minimize the risk of transmission. Where on earth is the crime? The statute requires that the defendant engage in the sexual activity with the intent to expose the other individual to the life threatening communicable disease. The state in this case seems to think that intent is satisfied simply by an HIV+ person having sex with an uninfected partner.

Is this a crime because the 18 year-old "victim's" mother didn't like the fact that her son was having sex with a man? I have to believe that would be about the only way the police would hear about completely consensual sex between two adults. I would guess an awful lot of HIV+ Kansans are having sex without facing prosecution because there isn't some disapproving buttinsky calling the cops. Which is pretty much exactly how it should be. Because even HIV+ people have a pretty basic right to privacy in their consensual sexual encounters. Really. Read Lawrence v. Texas and tell me how I'm wrong.

So is this a twisted application of the law just because they don't like this particular defendant and his tendency to have gay sex with younger guys? (Bad fact alert: this defendant does have a 2001 conviction for criminal sodomy involving an 11 year-old boy. But the fact of his prior conviction is totally irrelevant here and doesn't render this completely legal, consensual encounter anything criminal.) Or is this prosecutor just stuck in 1988 modes of thinking about AIDS? Because back then, we all thought there was no safe sex with an infected person. But in 2009, we all ought to know better. And for crying out loud, a prosecutor who intends to pursue a felony conviction has an obligation to learn the realities of HIV/AIDS today. It's quite possible for people to have sex without infecting a partner. It's certainly not criminal.

UPDATE: I hadn't seen this last night, but the jury has already acquitted this guy.