Contrary to press reports, support not found for laws criminalizing HIV positive sex without disclosure
By Sean McShee
The press recently reported study results (Horvath et al 2010) that a majority of gay/bi men supported laws criminalizing HIV-positive-sex-without-disclosure. Rather than finding support among all gay and bi men for these laws, the study found no scientific support for such laws. Reporters, however, went for the man-bites-dog sound bite.
The study failed to meet any of the requirements for generalizing from the 1,725 survey respondents (the sample) to all gay and bi identified men (the population): a list of population members, a statistically valid sample size, a random selection of the sample, and a high response rate from those selected for the sample. The sample was so unrepresentative that its racial breakdown was 76% White, 15% Hispanic, and 8% Other. The sample lacked a sufficient number of African American respondents to form a distinct racial category.
The study had two aims: 1) to describe patterns and predictors of attitudes towards laws criminalizing of HIV-positive-sex-without-disclosure, and 2) to determine if attitudes toward such laws differed by state of residence. The study did not attempt to determine the level of support among all gay and bi identified men for these laws. This type of study furthers research knowledge but can provide neither definitive answers nor immediate practical applications. Consequently, it has great interest for other researchers, but minimal interest for members of the general public.
Several problems remain with this study: The authors did not report the following: 1) how questions in this survey were “worded”, 2) if survey fatigue occurred, and 3) if the respondent knew the laws on HIV positive-sex in their state.
The wording of questions can affect the answers. For example in a recent survey on “Don’t Ask; Don’t Tell”, people responded differently to questions with just one word distinguishing them. More respondents expressed support for ‘gays’ in the military than expressed support for “homosexuals” in the military. Many survey researchers regularly publish the complete list of questions with the survey results. As this survey averaged 70 minutes to complete, the authors could not do so in this case. The volatile and critical question referring to “feeling more responsible for protecting on line sexual partners from HIV”, however, could have, and should have, been reported. This may be the most critical question in the survey and could have multiple wordings into which bias could easily creep. Without knowing the exact wording of this question, the meaning of the responses remains elusive.
A survey that averages 70 minutes to complete has the potential to produce survey fatigue among the respondents, resulting in less accurate responses in the second half of the survey. Survey researchers have developed methods to test for this, but the authors did not report the use of any of these methods.
In order for a law to have a deterrent effect on behavior, people will have to know that it exists. The authors, however, did not ask if the respondents knew the laws regarding HIV positive sex in their state of residence. The failure to ask this question reduces the credibility of the study’s argument that these laws lack a deterrence effect.
Supporters of these laws justify them as an HIV prevention strategy, presumably through a deterrence effect, but these laws do not make sense as a prevention strategy. As the uninfected person has the most to lose from unsafe sex, one would think that the negative should have the most interest and responsibility for protecting themselves – a “look both ways before crossing the street” model. Instead these laws criminalizing HIV-positive-sex-without-disclosure place the burden of prevention activity on the person with the least to lose in the encounter – a “you made a mess, clean it up” model. This replaces the self-interest of the HIV-negative with legal sanctions against the HIV positive.
The stigma of guilt clings to HIV positives, and not just the fanatical Christian concept of “God’s punishment”. It also appears in the idea of ‘innocent’ victims of the disease and AIDS as a “death sentence”. When laws remove all burdens from one party to a consensual sexual encounter and place all the burden on the other, guilt appears again. Results of an HIV test determine who is capable of “innocence” and who is capable of “guilt” for a shared activity. This is the very definition of a double standard. HIV negatives have to take full responsibility for remaining HIV negative. After all, few things motivate as effectively as self-interest.
Horvath, K.J., Weinmeyer, R. and Rosser, S. (2010). Should it be illegal for HIV-positive persons to have unprotected sex without disclosure? An examination of attitudes among US men who have sex with men and the impact of state law. AIDS Care, 22, 1221-1228.
