Public safety versus HIV confidentiality laws by Phillip Luis Velez

        Assemblyman Stephen B. Kaufman (D/C-Bronx) and Assemblywoman Nettie Mayersohn (D-Queens) recently proposed new legislation that would increase the criminal penalties for knowingly transmitting the AIDS virus to unsuspecting partners.  The bill would create a new offense - "aggravated reckless endangerment" - punishable by up to fifteen years in prison.  Their proposal comes in light of the case of Nushawn Williams, the 21 year old Brooklyn man accused of infecting at least 10 young girls and women with HIV in upstate Chautauqua County and New York City.  "The case of Nushawn Williams, who is suspected of infecting sex partners as young as 13, points to the horror of what can happen if an infected individual has unprotected sex with multiple partners," said Kaufman.  The proposal however would be in direct conflict with current HIV confidentiality laws, which were created in 1988 to encourage people to be tested, counseled and receive treatment.
        Williams was diagnosed with HIV in September 1996 and allegedly continued to have sex up until he was arrested on Sept. 22, 1997 for selling crack cocaine.  Prosecutors in Jamestown, NY have charged him with the statutory rape of a 13 year-old girl and are seeking first-degree assault charges for each person he knowingly infected with HIV.  Prior to his arrest, a Chautauqua County health commissioner released Williams' name and picture to alert possible unknown sex partners.  The 1988 confidentiality law allowed for HIV disclosure if the matter posed "a clear and imminent danger to the public health."  Mayersohn praised officials in handling the case.  She said "the issue of public health must be paramount to an individual's right to privacy.  Confidentiality laws are being used to protect infected individuals like Nushawn Williams."
        Kaufman and Mayersohn want New York to join 30 other states and the country of Sweden in criminalizing the knowing transmission of the AIDS virus.  But many in the AIDS community feel that such a law would worsen the epidemic and lead to less voluntary HIV testing.  Bob Jaffe, director of state governmental relations at Gay Men's Health Crisis (GMHC), says the organization would oppose the idea.  "We view that as a huge mistake.  People come forward for HIV testing and counseling only if they have confidence that their status won't be disclosed."  He says less people would know their HIV status and make the unknowing transmission of the disease more prevalent.  The possibility of a state AIDS registry is of enormous concern to Jaffe.  "People have to feel confident that they are not entering a punitive atmosphere."
        Teresa McGovern, litigation director of the HIV Law Project, says the focus should not be on creating new laws to combat the disease, but addressing the underlining problem.  "For years we've been targeting young girls on HIV prevention.  Most girls wouldn't know if someone was on a registry. I don't think you can get to those issues with a list of names."  McGovern feels there has been a governmental failure in addressing the problem to adolescents.  "Where can you talk about sex, let alone gay/lesbian sex.  There is not political will to talk about it."
        Assemblywoman Deborah Glick (D-Manhattan) foresees a problem in how prosecutors would try the proposed law.  "How would you prosecute and define the knowing transmission of AIDS?"  Glick questions the purpose of these measures and says all aspects of the proposal and its general effect on the AIDS community should be investigated before more time and energy is spent on the issue.  She also questioned if assemblymembers sponsoring the bill are supporters of  HIV/AIDS education and curriculums.
        Heather Sawyer, AIDS project staff attorney at Lambda Legal Defense and Education Fund, says the proposal serves no valid purpose.  "Your telling people it's dangerous to find out their HIV status. The policy would make having unsafe sex a criminal act."  Sawyer added that the notion that people are going around knowingly spreading the virus is misleading.  She estimates that only one percent of total HIV cases deal with the knowing transmission of the virus.  On a legal standpoint, Sawyer says the law would have a difficult level of proof.  "It would rely on knowing someone's state of mind."
        Assemblyman Richard Gottfried, chair of the NYS Assembly Health Committee and sponsor of the 1988 confidentiality law, says the law in the Williams case worked the way it was suppose to.  "Courts can order testing and appropriate disclosure.  I have no problem with prosecuting someone like Williams, but mandating a breech in HIV confidentiality will drive people away from testing. It would be very destructive in containing the epidemic."
        If the proposed law becomes effective, author and activist Michaelangelo Signorile believes people will lie about their HIV status or rather not know it at all.  One of his concerns is in the area of basic human error, noting the possibility of people having to much to drink, not thinking right, and having unsafe sex.  "No one wants to infect people.  We all have a personal moral responsibility not to engage in unsafe sex, whether we're negative or positive."

Colores Vivos Copyright 1998