Duty to Disclose HIV Status to Partner

• Pages: 81-84

Contenidos

• The Issue.
• Legal and Policy Considerations.
• Practice Examples.
• References.

Page 81

The Issue

Individuals who are aware that they are infected with HIV are ethically obligated to attempt to protect others with whom they engage in sexual contact or injecting drug use from infection. But is there a legal duty of disclosure? Disclosure of one's HIV-positive status may infringe upon individual privacy, and elicit fears of social rejection, retaliatory violence by partners, and societal discrimination. Partners may also have an obligation to take steps to protect themselves from infection (or reinfection), including using a condom or sterile injecting equipment.

Legal and Policy Considerations

Misrepresentation may occur either by (1) withholding information about one's serostatus, or (2) intentionally lying about it. The latter, aside from practical issues of proof of lying ("he said, she said") and resulting harm, does not pose conceptual difficulties under general civil and criminal fraud or similar statutes. However, if a person does not know for sure that he or she is HIV-positive, but knows that there may be a chance of being infected, does nondisclosure of that fact amount to misrepresentation? Given the grave consequences of contracting HIV, public health considerations could lead to an affirmative answer. However, any person who ever had risky, unprotected sex might then become potentially liable. This would be an impractical and unwarranted extension of the concept of misrepresentation and might lead to liability by affiliation especially for members of high risk groups such as men who have sex with men or injecting drug users.

Legal and ethical principles of informed consent mandate that individuals at risk of concealed harms be made aware of such risks. Accordingly, the defense that the sexual or needle-sharing partner consented to the act would not normally be available in cases of intentional misrepresentation, especially if appropriate measures to avoid the risk of harm were not taken. The absence of informed consent may also have other legal consequences; it may, for example, be grounds for annulment of marriages.

A criminal statute requiring disclosure of one's HIV-positive status to partners may be viewed as an effective tool to protect public health if it is believed that many HIV-positive persons would not take precautions to prevent transmission and might otherwise choose not to inform their partners...