Q. I was tested for the HIV virus and the results were positive. Since then I have had sex with people and have not told them that I had tested positive. Should I tell my future sexual partners that I test positive for HIV? Does it make any difference if we used condoms during sex? Am I guilty of a criminal offense?
A. The Illinois Supreme Court has unanimously upheld Illinois' HIV Criminal Transmission of HIV Act. The case before the Illinois Supreme Court concerned two individuals (Caretha Russell and Timothy Lunsford - his alleged conduct was vaginal intercourse) who were charged with violation of the Criminal Code of Illinois, section 12-16.2(a)(1) which provides that a person commits Criminal Transmission of HIV, a class 2 felony, if he or she, "knowing that he or she is infected with HIV: (1) engages in intimate contact with another."
Subsection (b) defines "intimate contact with another" as "exposure of the body of one person to the bodily fluid of another person in a manner that could result in the transmission of HIV."
The law does create an affirmative defense if the person exposed knew or should have known that they were at risk of being infected and consented to having sex with that knowledge. This means that anyone who is positive and has sex, should disclose their HIV status to their partner. The law does not include other defenses which should be considered in a criminal prosecution such as safe sex precautions with the use of a condom.
The law also does not require the sexual partners to have actually been infected. Furthermore, the prosecution would not have to show that the accused had the criminal intent to infect someone else with the HIV virus. Merely having sex ("intimate contact") would be sufficient.
Because the language of the law focuses only on a person's knowledge that he or she is HIV positive the law will discourage testing. The result may be that individuals might be putting themselves at risk to avoid any actual knowledge and resulting criminal prosecution.
There have been very few Illinois prosecutions under this law other than actions involving prisoners who spit on guards. If you are HIV positive, however, there is always the possibility of criminal prosecution if you engage in sex.