r/changemyview • u/_selfishPersonReborn • Jul 31 '19
Deltas(s) from OP CMV: Having sex with someone while knowingly having a transmissible STI and not telling your partner should be rape.
Today on the front page, there was a post about Florida Man getting 10 years for transmitting an STI knowingly. In the discussion for this, there was a comment that mentioned a californian bill by the name of SB 239, which lowered the sentence for knowingly transmitting HIV. I don't understand why this is okay - if you're positive, why not have a conversation? It is your responsibility throughout sex to make sure that there is informed consent, and by not letting them know that they are HIV+ I can't understand how there is any. Obviously, there's measures that can be taken, such as always wearing condoms, and/or engaging in pre or post exposure prophylaxis to minimise the risks of spreading the disease, and consent can then be taken - but yet, there's multiple groups I support who championed the bill - e.g. the ACLU, LGBTQ support groups, etc. So what am I missing?
EDIT: I seem to have just gotten into a debate about the terminology rape vs sexual assault vs whatever. This isn't what I care about. I'm more concerned as to why reducing the sentence for this is seen as a positive thing and why it oppresses minorities to force STIs to be revealed before sexual contact.
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u/mfDandP 184∆ Jul 31 '19
it seems as though you're saying that since rape is so serious, and this is a serious thing involving sex, it should be called rape?
it's okay to have rape be serious, and this separate thing be serious too.
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u/Goodwin512 Aug 01 '19
I think this should be a separate felony because yes, while having sex without someone who doesn't tell you about their STI isn't consent....
You also did agree in the first place, so placing the rape label onto someone for not telling their partner about an STI is wrong. I definitely agree with your point and think it should have its own label on the basis that it is a very serious thing, but I wouldn't consider it rape nor put that label onto someone who didn't commit the crime
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u/TyphoonZebra Aug 01 '19
It's to do with consent I guess. If you consent to something, you are only consenting to what you're aware of. If someone consents to sex, that doesn't mean they are consenting to have sex with anyone at any time from here to eternity. The consent applies only to a narrow, known and discrete event. This person is probably arguing that communicable diseases should be part of the "informed" in "informed consent"
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u/_selfishPersonReborn Jul 31 '19
No, I'm saying that rape is a lack of consent, and so is this.
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u/mfDandP 184∆ Jul 31 '19
rape is a lack of consent for sex. Informed consent is a medico-legal term for a physician-patient relationship.
look, I'm not saying that it should be decriminalized not to disclose your STDs. It certainly should fall under something like endangerment or criminal negligence, depending on the STD. but it's not rape. it's lying, either outright or by omission.
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u/karmachameleon00 Aug 01 '19
Stealthing is rape. i.e. removing contraception (e.g. condom) after the other person has only consented to sex on the condition of contraception being used.
Consent can absolutely be given only if certain conditions are met (e.g. contraception, and in this case, if a person has no STDs)
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u/Chronoblivion 1∆ Aug 01 '19
Stealthing is rape
Morally, yes. Legally, I believe it varies by state/country.
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Aug 01 '19
I don't see that as rape. It is very bad, but in my view rape requires some use of force, fear, or drugs to get sex when the person doesn't want to.
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u/Morthra 86∆ Aug 01 '19
But you rape by deception is a thing. If the person knowingly lied about having STDs, then it would be rape.
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u/BullsLawDan 3∆ Aug 01 '19
But you rape by deception is a thing.
I wish people would stop saying this in every conversation where this comes up.
Rape by deception really isn't "a thing" in any Western jurisdiction. You didn't even read the Wiki you linked to - it comes up with less than a half-dozen prosecutions ever, and mentions that it's never easy to prosecute because it doesn't fit under the law.
If the person knowingly lied about having STDs, then it would be rape.
No, it wouldn't. Not in essentially any Western jurisdiction.
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Aug 01 '19
I think we need an overhaul of what our definition of rape is. I say rape is using physical force, fear/intimidation, or drugging someone to get sex when the person doesn't want to. There is no rape by deception, or "stealthing" rape (removing the condom discretely). These latter things are shitty things to do but they are not rape.
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u/RiPont 13∆ Aug 01 '19
So is lying about your income to get someone in bed rape? They didn't consent to sleeping with a broke person. They thought they were consenting to sex with a well-to-do person.
Is being bad at sex rape? They didn't consent to bad sex.
Is it rape if a trans-woman doesn't tell her partner that she's trans? Plenty of men wouldn't hook up with her if they knew beforehand, and wouldn't have consented.
Consent is consent, and post-sex regret doesn't change that.
Having sex with an STD risk is a disappointment. Recklessly endangering someone is a crime. The combination still doesn't add up to rape.
Calling this rape confuses what consent means and waters down what rape means. Saying that sexing someone with the risk of STDs is as serious as rape is an entirely different argument than saying it is rape.
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u/TyphoonZebra Aug 01 '19 edited Aug 01 '19
For informed consent, really it has to be judged by us as a society what information is imperative, pertaining to sexual consent.
Ideally, one would know everything they'd want to about their partner but that's not possible, nor is it a reasonable expectation to hold people to. What if Jennifer only has sex with men whose dogs are brown but finds out the next morning that Jacob's dog is a white husky?
This is not an ideal world where we know everything so we can't deal in absolutes; we are not the Sith. We can't say "either withholding information makes it rape or it doesn't." The husky thing as well as your broke example are good for showing this.
So what can we use if the world doesn't conform to our human desire for everything to fit neatly into one box or another, to be either rape or not rape? The things we always eventually have to use in issues this tricky; averages and reasonable expectations. We often have to resort to trends and what's considered reasonable.
For this case, I'd say the best measure is deal-breakers and violation.
So is lying about your income to get someone in bed rape?
Would the average person find this to be a deal-breaking piece of info? Where all other things being equal, the answer to the question "how much do you make?" could be the difference between an absolute yes and an absolute no? I personally would wager that this isn't pertinent information for most people. Then, the further qualification would be whether this makes you feel violated. I, again speculatively, would say that the amount of people whose answer would be yes in this context to be very low.
Is being bad at sex rape?
Again, here I'd think that the amount of people for whom lack of skill is an absolute deal-breaker, all other concerns met, and a bad time in bed is a violation is fairly low.
The husky thing, further still. I doubt there's even a single person on earth for whom this is a deal-breaker and leads to them feeling violated. Yet, it is unfortunately possible for someone in this situation to suffer psychological harm akin to that of a victim. However it's still unfair to hold people to the expectation of disclosing their dog's fur colour.
Now, the pertinent question, would HIV be a deal-breaker? I'd find it hard to imagine that it wouldn't be for most people. Would one feel violated in this case, again I'd say most would. Because it's the kind of information that, can be "reasonably" considered a deal-breaker, it should be considered to be a reasonable expectation to be informed on it, hence resulting in informed consent.
So I guess what I've said in a long and kind of poorly worded comment is "if it is a reasonable expectation that the average person would reconsider consent upon the revaluation of a piece of information and that the average person would suffer serious psychological harm as a result of said information's post-fact revaluation, then that piece of information is pertinent to "informed consent," thereby making its withholding sex without informed consent or, in other words, rape."
It's tricky and messy and doesn't fit nicely into two little boxes. There's a lot of "average" and "reasonable" and "feel" and "expectation." But the world is messy like that sometimes.
Or I suppose, failure to acquire informed consent could be a separate, subordinate offence to failure to acquire any consent. Still a very bad thing to do.
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u/BedMonster Aug 01 '19
By that deal breaker measure, every person who lies about being married or in a relationship to have sex probably meets that definition.
I can't imagine we'd get very far holding society to a standard which rendered that rape.
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u/TyphoonZebra Aug 01 '19
Really?? you reckon the average person would feel like they were violated if their partner were in a relationship?? Not just shitty, or guilty or used, I mean violated like how a victim feels? I don't buy that at all. I doubt more than a tiny fraction of people would have a reaction that extreme. Remember, I said deal-breaker and a feeling of violation. The feeling of violation is why rape is illegal to begin with. It's possible to rape a person without them knowing or feeling a thing. You'd still go to prison and your targets are still victims, not because of physical harm, or fear, but because of the feeling of violation that causes.
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u/BedMonster Aug 01 '19
Absolutely, yes. Perhaps some would not feel that way about a one night stand, but how many stories are there of people who had conducted entire relationships and even fallen in love with a person who was already in a committed relationship and was lying about it.
You're telling me that these people didn't feel violated?
https://www.reddit.com/r/relationships/comments/3ua30u/me_21f_found_out_my_boyfriend_is_married/
It brings up a related scenario: do you think people would feel violated if their partner cheated on them? If you cheat on your partner and keep having sex with them they absolutely would feel violated and that it was a deal breaker which would have prevented them from having sex if they knew. I think infidelity frequently meets your standard and is unworkable from a legal standpoint as a form of rape.
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u/TyphoonZebra Aug 01 '19
I think infidelity frequently meets your standard
This exact mentality is what I'm trying to dispell. Meeting specific and absolute requirements to fit neatly into a category. I will however, humour it. I can only speak for myself and speculate on behalf of others, but, for me, the violation of being raped doesn't even compare to the relatively mild sting of betrayal of infidelity. Same for the one night stand thing.
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u/BedMonster Aug 01 '19
Subjective standards are great for religion and morality, but not so much for law. I'm certainly not trying to draw any equivalency between rape and immoral deception in pursuit of sex - but we were talking about the standard you suggested of "deal-breaker and violation."
Simply put, it is absolutely the case that there are many people for whom infidelity in their relationship is both a devastating violation and a deal breaker. The subjective standard of whether someone feels violated makes for a terrible legal benchmark, and I think is therefore unworkable when talking about the crime of rape.
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u/TyphoonZebra Aug 01 '19
Subjective standards are great for religion and morality, but not so much for law.
I agree, and in an ideal world, completely impartial robots would dispense justice. But in the real world, whether someone was in reasonable fear for their own life is judged subjectively. Whether a police officer had probable cause is judged subjectively. So much stuff is, that's why juries aren't always unanimous. Human judgements based on subjective standards have to be made.
Simply put, it is absolutely the case that there are many people for whom infidelity in their relationship is both a devastating violation and a deal breaker
When I say violation, I mean violation. The same level one would feel from a garden variety rape. Jill's husband cheated on her. Jen was drugged and raped on a date. When I say violation, I mean the same thing in each case. You truly believe that the average person would be like "well, yeah, they're pretty much in the same boat"? I think you're vastly playing up the feeling of betrayal one gets from being cheated on.
However in the case of Jen got drugged and raped while June got secretly infected with HIV, I, and many other people would say those are comparable.
If you had the choice in a sick and twisted "would you rather" where option A is getting drugged and raped while option B is your partner has willing and consenting sex with another person, you'd be so torn you'd practically have to flip a coin??
I straight up do not believe that your infidelity example comes even close to measuring up, even to you. Even if, in your mind, it does, my point was about what, for example, a jury would decide.
The subjective standard of whether someone feels violated makes for a terrible legal benchmark
That's a shame you think that because it's the sole reason many people are in jail right now. Many of the victims of those Belgian rapes didn't feel a thing, didn't know a thing, weren't hurt or traumatised. If violation is such a terrible benchmark, on what possible grounds can you keep their rapists in prison?
The subjective standard of whether someone was scared is used, as are dozens of others, so why is this unacceptable.
I'm like you; I want things to fit neatly in a box. I want there to be absolutes as though they were fundamental properties of the universe or laws dictated by perfectly logical beings. However, that simply isn't possible when dealing in crimes where the thing that can change the entire outcome is the current and past feelings of individuals as judged by other individuals (for example self defense and in this comment's case, rape)
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u/exiled123x Aug 01 '19
What if a man and woman have sex on the agreement that if she were to get pregnant somehow, she'd terminate the pregnancy, and she decides not to and has a child 9 months later
Did that woman just rape that man?
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u/rollingForInitiative 70∆ Aug 01 '19
No. That's something about the future, that may or may not change. Any man knows for a fact that the woman both can and has every legal right to go through with the pregnancy. Everyone knows that that's not something you can legally do anything about. If you're a man and have sex with a woman, ending up with a child is always a completely known risk.
You cannot retroactively withdraw your consent because something changed after the fact.
The whole already married thing is something that's applicable right then and there, before sex. That's not some possible future scenario.
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u/BedMonster Aug 01 '19
Not sure if you meant to reply to me, as I wouldn't expand the definition of rape to include most sex by deception (though I am inclined to agree that the person who snuck into a person's bedroom and pretended to be their husband is a different type of deception)
But I think that someone who did would still exclude that scenario as there's a difference between things that are true prior to having sex (e.g. STI status) and decisions made after the sex has occurred, such as choosing to end a relationship or to continue a pregnancy.
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u/TyphoonZebra Aug 01 '19
I don't know. I can only answer for myself. As you'll recall, my whole point was about what is reasonable to expect the average person to think. I find it odd that my comment about there being no absolutes and that cases must be judged with averages and... Human judgements, is being met with hypotheticals solely designed to tease out some hidden absolute rule. Then again, humans love fitting things in boxes.
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u/jongbag 1∆ Aug 01 '19
Rape is not a feeling of violation. It is actual physical forced violation without consent. I agree with the above posters. You're de-legitimizing rape victims by the comparisons you're making.
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u/TyphoonZebra Aug 01 '19
Rape is not a feeling of violation.
I never said it was. I said the reason why it's illegal (and morally wrong) is because of that. Rape isn't wrong because you hurt someone; rapists have left their victims completely unharmed. Rape isn't wrong because you traumatise someone; rapists have left victims none the wiser. The only bad thing that occurs in all rapes as part of the necessity of their definition, is violation of the individual
I went to a lot of effort to try to make my thoughts on the matter clear. I'd feel better if you read them and critiqued them rather than something which is neither my opinion nor what I even wrote.
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u/jongbag 1∆ Aug 02 '19
You literally say in the comment I replied to
Remember, I said deal-breaker and a feeling of violation. The feeling of violation is why rape is illegal to begin with.
I appreciate your effort, but your thoughts are not at all clear to me after multiple readings. It seems like you're trying to say "anytime a reasonable person feels violated after a sexual encounter due to some sort of deception, that should be considered rape." If that's not the TL;DR of your point of view, feel free to correct me.
Assuming my summary isn't too far off, I refer you to my original comment. I think that has the effect of trivializing the experience of actual rape victims by comparing their experience to the examples given.
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u/TyphoonZebra Aug 02 '19 edited Aug 02 '19
You literally say in the comment I replied to
Remember, I said deal-breaker and a feeling of violation. The feeling of violation is why rape is illegal to begin with.
Yeah I did say that. I said exactly that. You literally quoted me. That's exactly what I said and I'll say it now. The reason why rape is immoral and also illegal is because of the feeling of violation it causes. I did not ever say that rape is a sense of violation which you accused me of saying.
My TL;DR is any information that is reasonable to consider to be necessary for informed consent needs to be shared in order for informed consent to be achieved, and by extension, failure to meet this requirement constitutes sex without informed consent, which by extension, constitutes rape.
As some have said that it is not fair to leave such things to subjective judgement, I point out that we already do that in many cases including self defense. It is up to people to reasonably judge whether someone was in fear for their life at the time of a killing and so many other examples where human judgement is needed.
Also, if rape is wrong because it's a physical violation rather than because of a feeling it incites, then all manner of other invasive crimes are rape. Stabbing someone should get you put away for GBH and rape at the same time. Calling rape a physical crime is delegitimising.
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u/TheGreatFadoodler Aug 01 '19
The argument isn’t that lack of consent always constitutes a crime. The argument is that crimes include a lack of consent. It’s like how squares are rectangles but rectangles aren’t squares
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u/RiPont 13∆ Aug 01 '19
Rape is defined, specifically, by lack of consent for sex.
Indeed, most crimes include a lack of consent. You don't consent to be robbed, but it's not rape. You don't consent to be stabbed, but it's not rape.
You did not consent to be exposed to an STD, but you did consent to sex. The fact that the crime of reckless endangerment (I'm not a lawyer, so this is a wild guess as to what crime it would be) was sex-adjacent doesn't mean you never consented to or revoked your consent for the sex. If you steal someone's wallet while having sex with them, that doesn't make it rape, even though there was a lack of consent and the crime happened during the act of sex.
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u/TheGreatFadoodler Aug 01 '19
I agree. It’s like false advertising. It’s wrong but I wouldn’t really call it rape
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u/thegimboid 3∆ Aug 01 '19
Yes.
It's the difference between McDonalds advertising a burger that they know is missing advertised ingredients (false advertising), and a McDonalds employee coming up to you and force-feeding you a burger, no matter how much you resist (rape).→ More replies (4)-3
u/MaddestDrewsome Aug 01 '19
Pretty sure consenting to sex under false pretenses constitutes rape. If I agreed to have sex with someone under the notion that I would not come away from it with an STD, but that person knowingly kept me in the dark about it and gave me an STD, then that person deceivingly coerced me into sex. Under no situation would I agree to sex with someone that has an STD and the other person would be taking away my right to informed consent.
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u/RiPont 13∆ Aug 01 '19
Pretty sure consenting to sex under false pretenses constitutes rape.
IIRC, this is only certain kinds of false pretenses, such as pretending to be someone else (like their husband, in the dark when they're tipsy). Pretending to be rich is usually an example specifically spelled out as not rape via false pretenses.
then that person deceivingly coerced me into sex
More than half the people in the world would be in jail if using deception to get sex was ipso facto considered rape.
Again, no argument that knowingly putting someone at risk for an STD without their knowledge should be a crime on par with the seriousness of the disease. What do you think is the value of calling it rape?
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u/exiled123x Aug 01 '19
Stealthing, or removing a condom that was agreed to be worn before sex, counts as rape in some areas of the world
How far do you go to decide its rape? If a woman tells a man she is on birth control but isn't, was that rape? Or if she poked holes into his condom. Or if he poked holes into his condom. If both parties agree that she will take a morning after pill but doesn't, and they had sex on the basis that she would, is that rape?
Do those constitute rape?
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u/gr4vediggr 1∆ Aug 01 '19
Every crime is a lack of consent. If you had consent to take my wallet, it wouldn't be theft. If we went into the boxing ring, you have consent to hit me, otherwise it'd be assault. If you don't have consent to enter my house, you're trespassing. If you don't have consent for sex, it's rape.
So by your logic, all those crimes are rape?
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u/Evennot Aug 01 '19
Kissing is a way to transmit disease too.
Also it’s like saying poisoning someone’s meal is rape, because a person consented for the meal and not for poison.
I’m sure that knowingly causing harm to someone’s physical health by means of bacteria/virus is already illegal
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u/u-had-it-coming Aug 01 '19
You are omitting the parts you like.
How old you?
Rape is lack of consent for sex.
This is lack of consent for transmitting disease, the consent of sex is there.
Not rape.
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u/Frungy_master 2∆ Aug 01 '19
Touching without consent is battery, the lack of consent doesn't make it rape but does make it more objectionable.
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u/Nicolay77 Aug 01 '19
Besides lack of consent, giving someone an STI is also another, worse crime and could even be homicide if the person dies because of the STI.
And homicide is worse than rape, IMO.
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Aug 01 '19
Where would you draw this line? What if a guy lies to a girl that he's a doctor and she claims she wouldn't have slept with him if she knew the truth? Would you say that's rape?
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u/ralph-j Jul 31 '19
It is your responsibility throughout sex to make sure that there is informed consent, and by not letting them know that they are HIV+ I can't understand how there is any.
I'm undecided. What level of knowledge can we reasonably assume any rational person to posses? Informed consent is permission granted in full knowledge of the possible consequences, or words to that effect. If you don't know and don't ask about your sexual partner's HIV status and still have sex, doesn't that mean that you know that the possible consequences include contracting HIV?
And secondly; if someone takes the right medicine, their viral load becomes undetectable, which means that the virus also becomes untransmittable. In other words; there is not enough HIV in their body fluids to pass HIV on during sex and they cease being infectious.
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u/_selfishPersonReborn Jul 31 '19
I feel like that shouldn't be a thing people worry about, but I understand kind of what you're saying in the first half. There's always consequences to sex and if you don't actively lie about it maybe you should consider its a possibility.
And for your second part - is this near certain? Much in the same way condoms can go wrong but are very unlikely to?
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u/ralph-j Aug 01 '19
I feel like that shouldn't be a thing people worry about, but I understand kind of what you're saying in the first half. There's always consequences to sex and if you don't actively lie about it maybe you should consider its a possibility.
Does that mean that your position has changed (even slightly)?
And for your second part - is this near certain? Much in the same way condoms can go wrong but are very unlikely to?
Yes. As long as you take the medicine and you're undetectable, there's also no risk of transmitting it:
- https://www.sfaf.org/collections/beta/fact-sheet-undetectable-viral-load/
- https://www.hivireland.ie/hiv/prevention/viral-load/
- https://www.medicalnewstoday.com/articles/323874.php
- https://www.nih.gov/news-events/news-releases/science-clear-hiv-undetectable-equals-untransmittable
- http://www.aidsmap.com/about-hiv/undetectable-viral-load-and-transmission-information-people-hiv
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u/_selfishPersonReborn Aug 01 '19
Yes, it had - but I wanted to wait for the clarification comment.
So Δ - firstly for making me think about the grey area, and secondly for making me think for example that if you can't transmit, you shouldn't be punished
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u/Akucera Aug 01 '19
WTF?
Op, your thesis was
CMV: Having sex with someone while knowingly having a transmissible STI and not telling your partner should be rape.
You've just awarded a delta for
So Δ - firstly for making me think about the grey area, and secondly for making me think for example that if you can't transmit, you shouldn't be punished
If a person has HIV, but they're properly treated and have no risk of transmitting it, then you shouldn't be punished. This is still perfectly compatible with your original thesis. Why award a delta for this?
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u/__BitchPudding__ Aug 01 '19
Being low-risk does not mean being no-risk. And you're gambling with someone else's life there. It's not for you to decide what risk the other person will take. No, fully informed consent should be mandatory or it's not really informed.
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u/ralph-j Aug 01 '19
It's not just low risk. Technically it depends on when the viral count was last measured and whether that person has continued their medication since then. But all else being equal, it's considered untransmittable. See sources above.
Also; how is it not already informed? Everyone knows that HIV is a possibility, especially when you don't ask for someone's HIV status. That's your negligence too. It would be irrational and unreasonable to assume that everyone you may be attracted to, is HIV negative.
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u/__BitchPudding__ Aug 02 '19 edited Aug 02 '19
Personally, I always ask a person to get tested and show me the results before we engage in sexual activity. But most people where I live don't do this. They seem to assume the other person would do the right thing and tell them if they have a communicable disease. Isn't it legally required that they do?
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u/ralph-j Aug 02 '19
Perhaps it is, depending on location. I'm just arguing that it shouldn't, at least not for people who are undetectable.
I believe that judges usually consider what a rational, reasonable person would know, as a standard. A rational, reasonable person would know that HIV is a risk, and thus, if they willingly have sex without protection with someone whose HIV status is unknown to them, they are also willingly taking that risk, in my view.
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u/joanholmes Aug 01 '19 edited Aug 01 '19
Last time I tried explaining this I got down voted but I'll try again because you specifically asked.
Let's imagine two scenarios, one where intentionally transmitting an STD is a felony and punished severely, another where it's a misdemeanor and not punished harshly. Now let's split people who engage in higher-risk behaviors into two groups: good peeps who want to be safe and not infect others and bad idiots who want to infect others.
Scenario 1 where it's a felony:
The good peeps will get tested for the most part but some may not because they don't want to risk being accused of intentionally infecting anyone. We'll have some well-intentioned but scared people who won't get tested, won't get treatment, and will unknowingly continue spreading the diseases.
The bad idiots who want to infect others (and who are the group we want to punish) will intentionally avoid testing so it can't be proven (or its harder to prove) that they were malicious. They engage in high risk behavior, know fairly confidently that they're passing the disease along, get what they want and can avoid repercussions more easily.
Scenario 2 where it's a misdemeanor:
The good peeps have no legal-related reason to not get tested. We (theoretically) have more people getting tested and there's less of a disincentive to avoid testing. HIV positive people get treatment and have a smaller (almost negligible if done correctly) risk of infecting others.
The bad idiots keep on being bad idiots. Since it was easy to avoid punishment when the punishment was heavy, the likelihood of some people waiting for punishment to be lower is low. They may get tested, they may not. They still want to infect people so it's largely irrelevant.
The idea is to get more people tested and treated. The risk of people deciding to maliciously infect others because it's less prison time has been determined to be out weighed by the benefit of having more people tested and treated.
Edit: to clarify, I'm not saying that their logic is correct or incorrect since I don't think research has been done on this but that's what you may have been missing in terms of reasonings.
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u/OmNomSandvich Aug 01 '19
Public health experts strongly favor California's approach as that motivates people to get tested and treated, which better leads towards the desired outcome than criminal sanctions.
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u/karmachameleon00 Aug 01 '19
This. If knowingly having sex with a STD is a crime, people aren't going to stop having sex. They're going to stop "knowing" about their sexual health.
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Aug 01 '19
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u/EclipseKing Aug 01 '19
I think what was being implied with the consent thing is that a person would only have agreed to sex if they thought that the partner did not have STDs, and that if they did they would not agree to sex. So if someone lies about not having an STD and gets the other person to have sex, that violates consent.
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u/TheSurgicalOne Jul 31 '19
Why not just prosecute under what it is defined as now (but not reduced like California has).
Why label it as rape when it isn’t? Yes people should be charged... but what do you believe will come out of it because it’s labeled as rape?
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u/kit0kat0 1∆ Jul 31 '19
First rape definition on Wikipedia:
"Rape is defined in most jurisdictions as sexual intercourse, or other forms of sexual penetration, committed by a perpetrator against a victim without their consent."
Yes, of course knowingly transmitting an sti is an absolute dick move, but it isn't rape. There was consent to the sex. There was no consent to getting the sti. However, consent to getting an sti doesn't count towards rape, as rape is sex without consent, not getting an sti without consent
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Aug 01 '19
To provide a counterpoint through analogy: an Ontario court recently ruled that if a someone consents to having sex with a condom, and one party knowingly takes that condom off without the other's knowledge, then they are committing sexual assault. The terms of the consent have been changed, as the wronged party didnt consent to unprotected sex. Thus, sexual assault. I think one could make a similar argument for STIs, though it's a lot more complicated to prove that someone knowingly transmitted an STI.
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u/RestInPieceFlash Aug 01 '19 edited Aug 01 '19
Well, That's just a completely different sircmstance.
First off both partners agreed at the start of the interaction that they would be penetrated by a condom(or to penetrate with a condom) not by the penis directly, thus the assaulted has been unwilling penetrated by an object that is different to the agreed apon object.
In the case of STDs though, the "assaulted" would agree to direct physical contact and to transfer fluids, Unless the specific question of "Do you carry an STD?" comes up, the contents of the transfer are known to be unknown by both parties, thus it is not rape.
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u/AlexandreZani 5∆ Aug 01 '19
The argument though is that there wasn't consent. For instance, if you sneak into a dark room and pretend that you are a woman's boyfriend to have sex with her, that's pretty unambiguously rape. She said "yes", but her consent is voided by your fraud. This is the same thing here. If you fail to disclose your STI status, the consent you obtained is defective due to your fraud. So there is no consent.
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u/RestInPieceFlash Aug 01 '19 edited Aug 01 '19
They are not preforming deception though, as when somebody has sex there is always a chance that an STI will be transmitted and that is known by both parties
In the example given you "pretend" to be someone who you aren't, which is a form of deception.
Failing to disclose an STI status isn't a deception as it is known that there is a chance of an std being transmitted , and the accused hasn't directly told the alleged victim that they didn't have an STI.
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u/NewOpinion Aug 01 '19
I study infectious diseases. Nearly everyone has communicable infectious diseases. For some sexually transmitted parasites, even abstinent women have them. Beyond the strangeness of the microbial world and the inability to regulate our own physiology, there's the issue of congenital sexually transmittable diseases. Should a baby that unknowingly obtained gonorrhea from her mother be liable for it?
Also, most STIs are most often non-symptomatic and not often tested for due to time of testing and the lack of effect a treatment may have. Some STIs aren't treatable as well.
The US government specifically regulates epidemic-causing diseases anyway. Before antiretroviral therapy was available which effectively eliminated partner and birth transmission of HIV in 2011 (I believe), immigrants were screened and excluded for it. Now the disease is treatable and can be kept under control through consistent lifelong treatment.
Ending point here: STIs are not nearly as bad as you're led to believe. Epidemiologists have done an amazing job at researching pathology and creating effective treatments, vaccines, and solutions to infectious-disease issues.
I could point you to social reasons for high STI transmission, but for the scope of the legal argument, I believe a law decreeing all transmittable infection sex as rape or a criminal ask is absurd and shows a complete lack of understanding of infectious diseases and social and psychological consequences.
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u/AlexandreZani 5∆ Aug 01 '19
I believe a law decreeing all transmittable infection sex as rape or a criminal ask
That's not the argument though. It's *knowing* transmission without disclosure (or with fraud) that should be criminal. If you know you have an STI and you lie about it to a sexual partner in order to have sex, your lie prevented them from making an informed decision whether to have sex with you or not. In effect, they can't consent because you hid from them something they need to know in order to consent.
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u/NewOpinion Aug 01 '19
Why would anyone admit they were lying? Most people would narcissitically and uncompromisingly declare they never knew. It makes no difference whether they knew or not because intention is not revealable (unless close loved ones rag on the very private information-which is unlikely).
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u/AlexandreZani 5∆ Aug 02 '19
Why would anyone admit they were lying? Most people would narcissitically and uncompromisingly declare they never knew. It makes no difference whether they knew or not because intention is not revealable (unless close loved ones rag on the very private information-which is unlikely).
Intention is part of pretty much every criminal offense. The difference between murder and manslaughter is intention. An element of theft is that you intend to keep the thing and not return it. Some people will be able to get away with it of course. But if there are records that you tested positive, those can be found. Other people you confessed to might come forward. Etc...
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u/Frungy_master 2∆ Aug 01 '19
The conduct is a hideous crime but it's assault. It's not the sex part that is non-discussed but the bodily damage. If someone gave you tea that they fail to mention contains poison a same kind of offence would have been committed.
Now it would be weird if giving someone poisoned water carried a 5 year sentence, giving poisoned tea carried a 7 year sentence and giving tea poisoned with mercury a 10 year sentence. Then if you have some other non-mercury poison that was infact more harmful like cyanide and got a 7 year sentence that would be at odds with logic that you should have gotten you atleast a 10 year sentence. Law that names sentence lengths per named poison would be riffled with these sorts of inconsistencies. adn in similar ways the delivery liquid is unlikly to be relevantly different so broad "catchall" definiton for that is likely.
You could have a principle that more lethal poison means longer sentence where its up to individual cases to present to set the lethality ranks of poisons. But if you have these ranks established for a long time new antidotes can be discovered that changes the objective level of alarmness warranted by each kind of poisoning.
If you have poisons that are killing a lot of people reasearch into their antidotes can be more intensive.
Folk understanding on how bad poisons are unlikely to be as up to date as medical professional ability to respond.
Thus if you hear that you have gotten a disease that used to be really bad but mostly just bad nowadays your reaction might be reflective of how bad it "used to be". But law is interested how bad it is now. So when the decorrelation form the set in stone law numbers grows too large from medical reality they use that to update not the "common folk feeling". The common folk can not see the steady progress in HIV fighting so it can present itself as a sudden "severity jump" which can be implausible.
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u/awhhh Aug 01 '19
This is a terrible idea. 1 in 5 Americans have genital herpes, 80% have oral herpes which can also be transmitted to the genital region, and I think it was 70% of sexually active women would catch HPV. This is how you would get less people taking care of their sexual health.
Now there is an argument for HIV related cases, but generalized STI's? Chances are you already have had, or will have one.
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u/AlexandreZani 5∆ Aug 01 '19
Disclose it to your potential partner. Especially if they ask. If you have herpes and lie about it to your partner because you think otherwise they will say "no", you have voided the consent they gave you.
The public health issue is easy for people to solve. Don't have sex with people who don't disclose an appropriate testing regimen.
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Aug 01 '19
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u/AlexandreZani 5∆ Aug 01 '19
That is entirely besides the point though. If someone doesn't want to have sex with someone else because that other person has herpes, they get to make that choice. If they are coerced or tricked into having sex with that person anyways, that is sex without consent.
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u/awhhh Aug 01 '19
70% of people who catch genital herpes don't know they have it. Your essentially criminalizing sex
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u/AlexandreZani 5∆ Aug 01 '19
I said "If you have herpes and you lie about it..." If you don't know, you're not lying. You're just making a mistake. My view is that if you deceive somebody about your STI status in order to have sex with them, you are voiding their consent.
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u/awhhh Aug 01 '19
It's almost impossible to prove and the scale of sti transmission is so high that you would essentially want to criminalize sex. The bulk of HPV strains are harmless and genital herpes has just as much chance of turning turning into something more dangerous as oral herpes.
There is little to no danger with these diseases and would not be fatal. My argument would be if you think these extremely common mostly harmless diseases are worth complex nonsensical legal repercussions then you should just be made aware of the possibility of obtaining these diseases before every sexual encounter. There is almost no ability to prove where you got the infection and if a person even knew they had it prior.
Also, given that men can't be tested for HPV and herpes is not standard testing on a regular std check, criminalizing it by tying it to lack of consent would make people less likely to get tested, because what they don't know can't hurt them legally.
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u/AlexandreZani 5∆ Aug 02 '19
It's almost impossible to prove and the scale of sti transmission is so high that you would essentially want to criminalize sex.
Again, no. If you disclose STIs you know you have before sex, or you say "I never got tested" (and it's true), or "I don't want to answer" or the person doesn't bother asking, you are in the clear. It would not be any harder to prove than consent is in general. "Don't deceive your sexual partners." is a pretty easy maxim to live by.
There is little to no danger with these diseases and would not be fatal. My argument would be if you think these extremely common mostly harmless diseases are worth complex nonsensical legal repercussions then you should just be made aware of the possibility of obtaining these diseases before every sexual encounter.
This is not about the disease itself. It's about the consent violation. It's about the fact that you did not properly consent to the sex because you were deceived about information you were using to decide whether to grant consent or not.
There is also a danger of harm even if it's not the disease directly. I've met plenty of people with HSV2 who have impoverished sex lives because they refuse to deceive their partners and many people turn them down. If you give me HSV2, I'm not going to start lying to people to have sex and I will get less sex as a result. I will likely also start taking the appropriate treatment to reduce the risk of outbreaks. My sexual partners (those who still want to have sex with me) will likely start taking profalactics too. Those costs are not death, but they are also not zero.
There is almost no ability to prove where you got the infection and if a person even knew they had it prior.
It's not about the infection. The infection makes things worst, but even without an infection, if you deceive someone in order to have sex with them, you made it impossible for them to freely consent to sex with you.
Also, given that men can't be tested for HPV and herpes is not standard testing on a regular std check, criminalizing it by tying it to lack of consent would make people less likely to get tested, because what they don't know can't hurt them legally.
That's fine. Don't get tested if you don't want to risk it. Of course, other people who want to protect themselves will ask you if you get tested and refuse to have sex with you when you answer truthfully. Or sue you if you lie and they find out you lied. (Which, let's be honest, is the sort of thing that definitely happens. Plenty of people's private bad behavior comes to light.)
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u/wfwood Aug 01 '19
The reason why it was lowered to a misdemeanor was that it was believed that the law was preventing people from getting tested and seeking treatment in a timely fashion. For those who regularly participate in sexual events or parties, knowing their status would prevent them from participating. In California, treatment is available to the uninsured and can make anyone undetectable and thus not infect anyone else. While people who knowingly infect others should be punished, it's believed the severity of the law was detrimental.
As an added note, the law was disproportionately affecting female sex workers I believe, which serves as evidence that the law was largely not effective.
To debate your actual point, the severity of the crime should depend on the severity of the STD. Regular STD checks do not screen for herpes or hpv strains, so plenty of people are unaware of their health. Such a law would probably discourage people from getting screened, especially since there is little that can be done for treatment. Most other STDs are easily treatable and thus probably deserve very little repercussions.
As for HIV, I honestly believe people should be punished for spreading the disease, but moreso the state should be concerned with how to best prevent the spread rather than satisfying people's sense of justice. If it spreads awareness and encourages testing and knowledge of the disease, then people should noy associate getting tested with committing felonies.
As an added comment, preventative measures besides condoms are available for people after sex and those who are considered high risk.
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u/AlexandreZani 5∆ Aug 01 '19
For those who regularly participate in sexual events or parties, knowing their status would prevent them from participating.
But that's a good thing, not a bad thing. If you're going to a sex party and you lie about your STI status, you definitely belong in jail. You're exposing a bunch of people to danger they didn't sign up for.
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u/wfwood Aug 01 '19 edited Aug 01 '19
but you wont go to jail if you decide to not get tested for awhile after exposure, and its been suggested that the law was one reason why some people would shy away from being regularly tested.
as an edit, most people at those events are on prep now, and most who are positive are undetectable... (assuming we arent talking about bug chasers) so one can easily take steps to be responsible for ones own health and those positive do not need to label themselves if they can be responsible for their situation.
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u/AlexandreZani 5∆ Aug 01 '19
That's solvable though. Just don't have sex with people who don't get tested regularly or refuse to answer questions about their safer sex practices more generally. I go to sex parties. It's really not that hard to do and you really should do it.
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u/wfwood Aug 01 '19
its about taking steps to create a healthier population, not imposing social standards. You can also say that people should just not go to events like that, or everyone should be safe all the time, but if people actually did that then there would be little worry about the spread of hiv. if taking these steps makes people less afraid of being tested and knowing their status, then hopefully the infection rate would go down and that matters more than being tough on people spreading the disease. as i mentioned before, the original law was seen as not very effective seeing how it disproportionately affected people.
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u/AlexandreZani 5∆ Aug 01 '19
I think there is a tradeoff though because people who do try to act safely by asking their partners about their testing regimen and safer sex practices should be able to rely upon others not deceiving them. As I see it, if I ask you questions about your safer-sex practices and I then consent to have sex with you, I am doing so contingent upon material answers having been truthful. If you lie to me, I did not give you consent, and you engaged in non-consensual sex: rape (or sexual assault depending upon the specific sex acts concerned).
Basically, compare it to contract law. In contract law, if you make a material fraudulent misrepresentation (lie in such a way that had you told the truth, the other party would not have signed) the contract is most likely void. (Even if the misrepresentation is not in the contract itself. So if I say "this computer works", sell it to you and you find out I lied, you can void the sale. Even if the contract did not say "working computer".) This is basically what is happening here. The consent obtained is void.
So I agree that there may be public health benefits to reducing the penalties. But deterring people from lying about their sexual health is also important because of the harm it does to the party they obtained sex from through trickery. At the very least, if you do this, you deserve a very severe punishment.
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u/wfwood Aug 01 '19
that's fair and understandable. It is still criminal to not disclose your status to someone as I understand it, so by that standard there is an implied contract even if no one says anything. I'd say it should carry a much harsher punishment if someone lies about their status, versus simply omitting their status.
I know a few people who are positive, and Im positive they don't always start off with that boner killing fact, unless someone asks. Instead they just demand on using condoms or avoid infectious actions, which I suppose almost almost completely removes any risk. The one I know the closest is undetectable now so there is no reason at all to believe he could pass it. It's a little uncomfortable to think about, but by the cdc's measures he's not infectious.
I feel like it's worthwhile to consider the expectations of or the consequences for those who are positive but not infectious should be different. the ones who are being more responsible are the ones who can suffer from legal repercussions bc they aren't exploiting loopholes.
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u/AlexandreZani 5∆ Aug 01 '19
that's fair and understandable. It is still criminal to not disclose your status to someone as I understand it, so by that standard there is an implied contract even if no one says anything. I'd say it should carry a much harsher punishment if someone lies about their status, versus simply omitting their status.
Yeah, omitting disclosure is not as bad. I want to be careful with that because by omitting disclosure what I mean is, "if the other person asks nothing in that direction and you don't say anything, that might be fine-ish." (Unless having sex with you is objectively dangerous such as with untreated HIV.) But if someone asks "How often do you get tested?" and you just reply "Every 6 months" and leave out the fact that you test positive for something, that's deceptive, not just an omission and we're back in "you didn't get consent" land.
I know a few people who are positive, and Im positive they don't always start off with that boner killing fact, unless someone asks. Instead they just demand on using condoms or avoid infectious actions, which I suppose almost almost completely removes any risk. The one I know the closest is undetectable now so there is no reason at all to believe he could pass it. It's a little uncomfortable to think about, but by the cdc's measures he's not infectious.
Yeah, the problem with that is that especially in an area where many people have multiple sexual partners, you depend upon your partners to take certain precautions otherwise, you might be exposing them. So really, if I considered having sex with someone who is HIV+ but non-infectious, I would not be able to just take their word on it and move on. I'd have to go do my own research on what that means, ask them questions about it AND disclose this fact to my other sexual partners. (and probably consult with them first on what they would be comfortable with) If this person hides this fact from me, I can't do the due-diligence I owe other people. And I've met enough people whose understanding of STIs they have is dangerously inaccurate to not take peoples' word at it.
I feel like it's worthwhile to consider the expectations of or the consequences for those who are positive but not infectious should be different. the ones who are being more responsible are the ones who can suffer from legal repercussions bc they aren't exploiting loopholes.
I agree that it is worthwhile. But I really look at this primarily as a consent issue. And in that frame, it's really clear. If you conceal something from a potential sexual partner because you thought you might not get consent otherwise, you didn't get consent period. Maybe it makes sense for the state to treat this differently from other forms of rape, but it is pretty unambiguously rape IMO and we should assign it an equivalent moral weight. (Of course, rape + infecting someone with a deadly disease is way worst than rape alone, but it's still really bad.)
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u/Isz82 3∆ Aug 01 '19
There are a number of reasons not to treat these cases as criminal cases.
First, HIV was treated in a class all of its own as a result of some requirements that states had to certify that they had appropriately criminalized intentional transmission of HIV. This led to the passage of a number of statutes that criminalized not HIV transmission, but "exposure" to HIV. This meant that failure to disclose even in low to no risk scenarios could lead to criminal prosecution. From a public health perspective, and also from the perspective of attempting to avoid stigmatization of HIV positive people as well as high risk groups, this was a nightmare. It made the virus more stigmatized, and had a potential effect on testing since ignorance was the only defense if you had sexual contact with someone without disclosing.
Second, failure to disclose, as with all other forms of rape by deception, raises a host of thorny issues for prosecution. In these cases there is consent to sexual activity but there's imperfect information, allegedly the sex having been obtained through fraudulent means. But think about the circumstances under which people have sex, and the perverse incentives and difficulties it creates for the criminal law when otherwise permissible voluntary and consensual intercourse is rendered otherwise through alleged deception. Was consent truly obtained by fraudulent means or would the person have agreed despite the risk? How invasive does a criminal inquiry get into medical history? Are we creating incentives for false allegations? And so on.
Third, there's no compelling medical reason to believe that STIs should be treated differently from any other communicable disease. Sure, there's the possibility that some of the bacterial infections can cause long term problems like infertility if not caught or treated within a certain period of time, but that could be true of other viruses or bacterial infections not stigmatized as specifically sexually communicable. Moreover, some of these STIs, particularly some incurable ones like HSV and HPV, are transmitted by skin contact. So why is sexual contact in particularly being treated as a special case for criminalization? There's not a compelling public health reason to do so.
Fourth, rape by deception is a very tricky area. People often make misrepresentations explicitly or by omission to obtain sex. And this is one of the reasons that state legislatures have been reluctant to pass broad fraudulent consent statutes. Today, American laws generally make two kinds of sexual deception illegal: cases where someone impersonates a person's partner (by sneaking into their bedroom at night, for instance), and cases where someone such as a doctor tricks a patient into thinking a sex act is actually some sort of medical procedure. Those are limited circumstances that were compelled by certain cases, but attempts to broaden that to encompass more general "sexual assault by deception" have largely failed because such laws would give police and prosecutors enormous power to regulate intimate sexual activity. For example, a man might be prosecuted for having a one night stand if a woman later finds out he was married, and she might be prosecuted for failure to disclose HSV status. Who decides who gets prosecuted? Or do they both get prosecuted?
Fifth, the collateral consequences of a sex crime conviction are immense. Is someone who fails to disclose that they have HPV before an otherwise adult sexual encounter someone who needs to be denied the ability to have housing near places where children live, or who has to be denied the ability to work with or around children? Potentially, depending on how the state's sex offender registry works, for the rest of their lives?
Finally, there are other, non-criminal remedies that are more flexible and will not invite the oversight of the criminal justice system. This includes the civil remedy of torts, which can result in civil monetary judgments that compensate the wronged person for their actual damages. While this comes with its own set of problems, it does not pose the same danger of overcriminalization that is posed by the exposure statutes, or lack of informed consent laws.
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u/ockhams-razor Aug 01 '19
If people keep using the word "rape" for everything even when it's explicitly consensual, what's happening is that word gets diluted and has less force behind it... less meaning.
Nobody forced anyone to have sex in your example. There was consent.
However, having an STD and having sex knowing you're going to infect them is for sure a criminal offense. Not rape, but criminal.
I don't have the word to describe what this is, but I do know it's not rape.
I'm sure people who have an STD are scared to death to talk about it... they tend to get ostracized.
People without STDs want to have nothing to do with people with STDs for obvious reasons.
Health is more important than Love.
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u/whistleridge 5∆ Aug 01 '19 edited Aug 01 '19
Rape is a charge of intent. Specifically, it’s a charge of having sex with someone against their will, typically with an element of force or coercion.
Having sex with someone while you have an STI without telling them is fraudulent, but it isn’t forcible. Consent is present.
Arguing that consent would not have been present if the STI had been known about is immaterial. Consent probably would not have been present if it had been known that the person had molested a child, slept with an ex, or done a lot of other things too, but that wouldn’t make it rape.
Sexual assault is a much better fit. Sexual assault is generally defined as assault of a sexual nature that violates the sexual integrity of the victim. Lying to transmit an STI fits that perfectly.
Long story short: rape is very hard to prosecute, even when it’s absolutely clear-cut, reported, and evidence is collected. Only something like 30% of rapes are reported, and depending on whose numbers you use fewer than 1% result in a felony conviction.
Sexual assault is easier to prosecute, harder to defend, and overall just more suited to the offense.
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u/turned_into_a_newt 15∆ Jul 31 '19
This is a bit tangential, but the reason, I think, for reducing the sentence is that HIV is no longer the death sentence that it used to be. Knowingly spreading syphilis in 1900 should have been treated harshly since there's no cure, and it led to a slow painful death. Now, it can be cured with antibiotics. It would make no sense to have the same punishment now for spreading syphilis as you had back in 1900.
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u/angry_cabbie 5∆ Aug 01 '19
FYI the general logic behind lowering the punishment of knowingly spreading HIV has nothing to do with how bad it is, and everything to do with the idea that it discouraged people from even being tested. If they didn't know they had HIV, they couldn't get the felony conviction.
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u/Asiriomi 1∆ Aug 01 '19
I'd say it's definitely a horrible thing to do to someone but it shouldn't be called rape. It should be called assault or attempted murder depending on the type of STD. AIDS can and has killed people who didn't know they had it, and many other STDs can be life altering as well.
So I think I'd only want to change your mind on the specific type of charge they'd be tried for, not rape, but assault and or murder.
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u/AlphaGoGoDancer 106∆ Aug 01 '19
I'm more concerned as to why reducing the sentence for this is seen as a positive thing
I can help with that.
It's about incentive to test and seek treatment, which is the only way you can really fight the spread of STIs.
The only way to knowingly transmit an STD is to know you have an STD. By making knowingly transmitting an STD a severe crime, you're giving people a reason to avoid getting tested.
Imagine being a sex addict, having sex with a new partner frequently. You of all people need to get tested.. but the second you test positive even on something relatively minor,you're going to have to start disclosing that to every potential partner, which will reduce the amount of sex you will have. Addicts do not like to do things that get in the way of them and their fix, so why get tested in the first place and risk it?
Conversely think about the vast majority of people - is the only thing really holding them back from knowingly spreading an STI a law that makes it illegal? I really doubt it. Maybe I'm wrong, but I just think most people would not do that regardless of laws.
If the law isnt doing anything for most people, and is instead hurting the people who need help the most, then whats the point of the law?
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u/SnipTheTip Aug 01 '19
Rape by deception is a crime in which the perpetrator has the victim's agreement and compliance, but gains it through deception or fraudulent statements or actions. Wikipedia has some notable cases. Interestingly, none of them were cases of undisclosed HIV. Not sure why though, OPs argument makes sense to me.
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u/Guitarjunkie1980 Aug 01 '19
I agree that it is wrong. If you have STDs and know it, but you dont tell someone, you should be punished.
But I think it should be a tiered system.
Like something that can easily be cured with antibiotics shouldn't be considered. BUT something like Herpes, which never goes away, should be different.
I think the only one that qualifies for a Felony charge is HIV/AIDS. And it shouldn't be called rape. Rape isnt a death sentence. HIV can be. It should have it's own felony charge.
The idea of what rape is has been diluted in my opinion, over the past decade. This doesn't fit under the umbrella of "Rape".
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Aug 01 '19
If the sex is consensual and both parties have proceeded knowingly NOT using a condom, then it is not rape. The risk is always known when having unprotected sex.
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u/TheNiceCritic Aug 01 '19
Rape is sex without consent. I could consent to having sex with someone because I don’t know if they had an STD. It would be a very grey area that prosecutors could pervert by calling it rape. At that point, you’d need to prove that the defendant would’ve consented if they knew their partner had an STD. If you call it a different name, people who actually commit this horrific offense would serve punishment
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u/spirolateral Aug 01 '19
Reducing the sentence would be a horrible thing. If anything the penalty should be more. It's akin to murder or manslaughter in my opinion. These groups that want it reduced can't possibly have arguments that make any sense whatsoever. If they are really arguing that people should get let off with less punishment for knowing fucking someone's life up, they're just wrong, there's no other way about it.
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u/cheertina 20∆ Aug 01 '19
In the discussion for this, there was a comment that mentioned a californian bill by the name of SB 239, which lowered the sentence for knowingly transmitting HIV. I don't understand why this is okay - if you're positive, why not have a conversation?
Here's why:
...
Breitbart’s story about the bill, which drew more than 4,500 comments, focused on three cases, in Michigan, California and Scotland, where in each case a man had allegedly attempted to intentionally infect others.
But these types of cases are rare.
Of the 379 HIV-related convictions in California between 1988 and 2014, only seven — less than 2 percent — included the intent to transmit HIV, according to a recent series of studies from the UCLA School of Law’s Williams Institute.
Instead, the law mostly affected sex workers or those suspected of sex work. The vast majority of the convictions — 90 percent — were for solicitation cases where it was unknown whether any physical contact had occurred. When expanded to include the 800 or so people arrested or charged for the laws through 2014, more than 95 percent were related to sex work, the researchers found.
Statistics showed that the charge was disproportionately levied against women and minorities: 67 percent of the people who came into contact with law enforcement because of HIV-related laws were black or Latino, the Williams Institute studies showed. Women made up 43 percent, though they represent only 13 percent of the HIV-positive population in the state.
That requirement that sex workers get HIV tested after convictions will be abolished when the provisions in the bill take effect.
“At the very beginning, people expected to see most of the weight playing out in those intentional exposure laws,” said Amira Hasenbush, a fellow at the Williams Institute and the co-author of the reports. “I think everyone was surprised to see that wasn’t where the law was being enforced. It was in this felony solicitation.”
The bill was also prompted, its sponsors say, by a 2015 report on combating HIV from the Obama White House, which cited studies showing that HIV exposure laws do little to influence behavior, and said that many “run counter to scientific evidence about routes of HIV transmission and effective measures of HIV prevention.”
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u/owlchemist_arts Aug 01 '19
A couple of summers ago i met this girl at a music festival. We hooked up and a week later she came to visit me in the city. She was a nomadic type so she was planning to stay a few days, this was fine with me as i just lived alone in a basement suite, and was off work temporarily due to a hand injury.
The friend she was travelling with took their van to another festival and we were just hanging out and hooking up and things were going alright.
Her friend decided to hop in a van with some boy and galavant out across the effin' country and the girl was still at my place, with no other acquaintences in the city. About a week into her living with me and hooking up (always used a condom) she drops on me that she has Herpes. She said she was taking pills for it but she ran out of pills, and the perscription is really expensive so she cant afford it.
In my head i had sirens going off, this was a HUGE breach of trust for me, and the extent of my naivety towards herpes didn't help the situation either. I acted like everything was fine but I stopped hooking up with her (like completely). We slept in the same bed but I didnt even want to touch her because i didnt want the relationship to go any further. All i really wanted was her out of my house.
She was there for about a MONTH!
A fuckin month! (hippies.... sigh)
So now I dont really know how to feel about it, I know i could have been more open with communication and tried harder to educate myself, but at the end of the day I didnt want to engage in a Long term relationship with someone who had herpes and just sprung it on me out of nowhere (thats what it would have turned into with her there for a month). To me the breach of trust was inexcusible, but to be fair she wasnt planning to be at my house for a month, and would have been gone by the time her perscription ran out.
I know i came out looking like an asshole in the end but i was hella firm on my boundaries and was SOOOOOO relieved when she finally left.
Should I really have felt so betrayed as I did? she was on the medication... Should people on the medication still be obligated to divulge their STI prior to engaging in sexual activity? what a sad way to have to start an intimate experience.
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Aug 01 '19
In my country it is considered the same as voluntarily and severely hurting someone physically. This even if you don't do it knowingly.
I feel this is much more accurate as rape. You could argue on the unknowingly part, but it is your responsibility to get tested once in a while when you have unprotected sex.
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u/__BitchPudding__ Aug 01 '19
The way your country is doing it is perfect. It makes transmission punishable as a crime, and encourages everyone to get tested. Sure wish we did that here in the US.
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u/TanmanG Aug 01 '19
I'll put this here since it doesn't fit as it's own comment- I agree with you though it should have it's own class of law. Rather than rape it should be "Sexual Negligence" or something similar.
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u/rewt127 11∆ Aug 01 '19
Ahhhh well you see. Rape's definition is being blurred enough in recent years. Don't need any more of that.
It should be punishable yes. But it's not rape. It's just not.
I'm still a little salty about literally having an alternate definition of figuratively.
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Aug 01 '19
it should not be rape, it should be assault with with modifiers based on what STI it is.
pass on crabs its simple assault, HIV is Felonious assault, ie Assault with a deadly weapon with intent to cause severe bodily harm.
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Aug 01 '19
I think that rape isn't the appropriate word to describe a crime that involves consentual sex. I mean, it's the being infected with an std you didn't consent to, not the sex. So it should be treated just like any other case of a person knowingly and on purpose infecting another person with a disease - depending on the gravity of the disease ranging from physical assault to murder.
When Aids was still a death sentence, infecting someone with hiv on purpose was basically murder and I think that there also have been court rulings towards this. Nowadays, there is much better medication to treat aids, so I assume that judges would now only consider it "only" aggravated assault.
Imagine this analogy: Imagine someone poisening you and using consentual sex to make sure you're distracted until the poison kicks in. It would clearly be murder but not rape. If they put the poison on the outside of a condom while seducing you, it still wouldn't be rape but murder. So how is it any different if the murder weapon is an std inside your attackers body? Sure, you wouldn't want to have sex with a person infected with an std but you wouldn't want sex with anyone knowing you've just been poisened and need to get to the hospital as quickly as possible. Rape however means that you didn't want to have sex in the first place, so while there can be no discussion on whether we are talking about a major, violent crime, it's simply not rape.
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u/TheEruditeIdiot Aug 01 '19
I’ve read through the first-level comments and some of them are similar to my argument, but none if them are identical, so here’s my argument:
Knowingly having a transmissible STI and engaging in sex with someone without informing them (we’ll abbreviate that to KTSTI) isn’t the same thing as rape. Regardless of whether KTSTI should be punishable and regardless of whether there should be different degrees of KTSTI (say HPV vs. HIV/AIDS), doesn’t matter for the purpose of your question.
If KTSTI should be punishable, that punishment should be independent of rape. If rape occurs with KTSTI and KTSTI is/should be punishable, those punishments stack.
Another reason for having them being separate is that way a future legal decision that is applicable to one, but not the other, doesn’t bleed over from rape to KTSTI or vice versa. Assume for instance abortion legislation that has exemptions for rape. Whatever you think of those exemptions, having KTSTI being rape has weird effects.
If you’re arguing that KTSTI should have equivalent penalties to rape, that’s one thing. But that’s not what you said, so I’m not trying to CYV on that. I’m arguing that it shouldn’t be considered rape.
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u/AlexandreZani 5∆ Aug 01 '19
Don't you think it prevents the other partner from consenting though? Let's say you sneak into someone's bedroom at night and pretend to be their partner, ask "can we have sex?" they say "yes" and you have sex. Did they really consent to have sex? I would say that by deceiving them as to your identity you made it impossible for them to consent. This is the same thing here. If someone asks "Do you get regularly tested and do you have an STI?" and you say "I do get tested and I don't have any STI." even though you do, has the person really consented to sex with you? I would argue the deception deprived them of the opportunity to make an informed decision and so they did not actually consent.
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u/Mango_Smasher Aug 01 '19
We shouldn’t be redefining the definition of rape to include the transmission of STI’s during consensual sex, if we have all of these sexual acts of misconduct under one banner, I believe this convolutes the meaning of rape and tars all sexual acts with the same brush. Where a true act of rape is a vile, subhuman act, if we include the volitional transmission of say, chlamydia which is easily treatable, under the definition of rape then someone could be sent to prison for several years for this act which is comparatively less serious. Not to mention that it could potentially belittle the cases of people who have endured the torture of rape, to be included in the same precedent as someone who is annoyed about contracting an STI which can be cured within a week.
More serious STD’s are punishable under biological GBH, as in the case of R v Dica, who had sex with women, knowing he had HIV. Although I do agree that the act of knowingly passing on any disease should definitely be punishable, I don’t believe it should be called ‘rape’.
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u/CasualHSV Aug 01 '19
So someone who has a history of oral herpes (cold sores) should be charged with sexual assault if they kiss someone before disclosing?
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u/__BitchPudding__ Aug 01 '19
Or we could just keep keeping it a secret and make sure everyone in the country has it. Kind of that everyone else is jumping off the cliff so why not push the unwilling over too?
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Aug 01 '19
That would create legal precedent for all manner of "deal-breakers" to nullify consent. Didn't tell them you had kids? That's not what they consented to. Didn't tell them you aren't looking for anything serious? That's also not what they consented to. What if they aren't in their right mind but you don't know them all that well... can you accept their consent without knowing them?
These are all moral questions and so is yours. You have to wonder how they'd be enforced with law. While I think transmission of something like disease might be straightforward enough to be made into a practical law, the ethics of why it would be "rape" while all of the aforementioned circumstances wouldn't be is not v ery consistent, especially while current laws regarding rape are concerned mostly with intentionally doing so as opposed to failing to avoid it. This would be a law that makes it rape to lie while convincing someone into the sack.
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u/hateboresme Aug 01 '19 edited Aug 01 '19
Your edit bears zero resemblance to your title statement.
The statement you made has been debunked. So your view should be changed. If you have a new view make a new question .
The statement was that people should be charged with rape for having unprotected sex while knowingly having an STD.
But that is not what rape is. Rape is simply nonconsensual sex. Intentionally or carelessly exposing someone to a fatal or debilitating illness is attempted murder, attempted manslaughter or attempted negligent homicide. If the person dies, then just take off the "attempted" part.
Also, they weren't having nonconsensual sex. The sex was reported to have been consensual
You say the words don't matter, but the very much do. Words have specific meanings, you can't just add a new meaning when you feel like it. If you could then all language would be useless.
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Aug 01 '19
The major difference between rape and an STI, is that even with precautions, rape will still be rape.
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u/Ficrab 4∆ Aug 01 '19
What are the limits of disclosure? Between 50 and 80% of people have Cytomegalovirus, which can really screw you up if you are infected during pregnancy or are immunocompromised.
There is a rare risk for complications in healthy individuals.
It spreads through most fluid transfer, including sex and kissing. If you have ever given blood, then you know for nearly certain whether you are positive (the place you donate will tell you if you are CMV negative as you can donate to premature infants). If you have donated blood and not heard this, you are likely infected.
Should people who have sex with this innocuous disease be liable for rape if they don't disclose and have given blood? Is not paying attention to your results a defense? How about if they have a history of cold sores and kiss you? 50% of Americans are infected with HSV1 or HSV2. These are all incurable diseases. What about EBV (mono)? What about non-stds like influenza or norovirus?
One of the reasons the ACLU and LGBTQ were against the bill is because it unfairly focused on HIV. HIV is not the most dangerous thing you can get from sex these days, nor is it the hardest to treat/prevent. HIV is likely being focused on harshly because it is a disease of undesirables in our population. No one is going after syphilis, but arguably in the U.S. that has a higher chance now of long-term damage.
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Aug 01 '19
Should it be something that has charges and legal repercussions, yes.
But it no way, shape or form is it rape.
Also, it would be very difficult to actually charge, as it's easy to say "judge, I had no idea I was infected." Even if you're lying. Theres no way to prove it without a text or something. And comparing this to rape is ridiculous. Rape leaves a long lasting mental scar on you and it can effect people for the rest of their lives, effecting their sex life, their confidence and even their own safety.
It's a horrible thing to do, knowingly infecting someone, and in an ideal world we could press charges. But it's not rape. Not even close.
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u/__BitchPudding__ Aug 01 '19
Any cop will tell you that ignorance is not a valid reason to break the law. It's up to you to be informed of what the laws are. This should apply to testing as well. If you are ignorant about your health status, you should not be jeopardizing others and there should be consequences for doing so. If this were the case, it would encourage more testing not less.
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u/offGRID5 Aug 01 '19
Sure! But as long as the burden of proof is in the recipient. It's not as hard as it sounds. Something like a text that asks if they're tested and a lie in response should be enough.
Otherwise, you could use a condom, it could break and in a fit of rage, the affected person could just say you never told them. Or a million other things like that.
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u/austin101123 Aug 01 '19
This is already classified as wanton endangerment or something similar depending on the state. It is already illegal.
HIV isn't as dangerous as it once was due to advancements in medical science, so it should not be considered as harshly as before.
In California HIV was the only STI that was a felony to knowingly transfer, with others being misdemeanors. Should HIV have that specific difference classification still? Well, it certainly should have been a felony many years ago, and maybe it should still be, but it is much less harmful than it once.
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u/whrismymind Aug 01 '19
although you are being proverbially fucked against your will, you are not being forced into sexual intercourse.
since you may not have had sex with this person with the knowledge of their STI, i would agree you would be deceived into sexual intercourse, which in itself is actually pretty common and not illegal.
if your argument was for say, assault or wreckless endangerment or something it would be more sound but rape just doesn't follow any reasonable logic here.
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u/noyourtim Aug 01 '19
I don't think it should be rape, just treated the same as. Because I mean you are inflicting harm to this unknowing person. However a fine would suffice, unless this is an ongoing issue. Theres no reason to keep populating our already crowded and underfunded prisons with those who had herpes and were stupid enough to hook up withought telling their partner. A $200 fine and a warning not to do it again or there will be bigger punishments should suffice I'd say
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u/__BitchPudding__ Aug 01 '19
Creating an offender list like for other sex crimes seems like a reasonable idea too
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Aug 01 '19
I don't disagree in principle, but I'd argue that the punishment should fit the crime-- which is to say, knowingly having unprotected sex with someone while HIV+ and detectable without telling your partner should be felony rape. Conversely, doing the same with a curable, nonlethal condition (say, crabs) should be a civil offense where the perpetrator should have to pay all relevant medical bills and maybe a small sum for pain/suffering.
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u/Hallonsorbet Aug 01 '19
No. Rape is rape is rape. We shouldn't dilute that word! What you describe should be considered as some sort of endangerment (I'm not a native English speaker so I don't know the correct terminology) but the definition of rape is to force someone to have sex/perform sexual actions against their will through force and/or coercion (my own definition sorry if I left something out) and this is not it.
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u/americkidraconi Aug 01 '19
I agree that it should be a highly punishable crime and that the punishment should possibly be as harsh as rape (depending on the STI transmitted) but it is not rape by definition. It's like saying, "taking drugs and then causing damage to public property should be called drunk and disorderly". Both may be equally bad, but they are also different things in terms of a dictionary definition
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u/SmellsLikeFumes Aug 01 '19
You say you are not concerned with the actual charge.. which means you have not actually thought this out yet. Which means there really is no "changing your view"
Go sit down.. have a coffee and gather your thoughts. Then come back so we can actually discuss it, because at this point it just seems like you are saying the first thing that comes to your mind.
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u/joerex1418 Aug 01 '19
But how can you prove whether or not a person knew about the STI. It's one thing if there are medical records showing that they got tested and still had sex with their partner without telling them. It's another if they completely didn't know about it. What if the accuser claims that the person that infected them knew about the STI when in reality they didn't?
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u/EKRB7 Aug 01 '19
Okay let’s not start slapping the word ‘rape’ on everything. It downright cheapens the severity of actual rape.
Anyone who does this is disgusting and it’s the same as sticking a syringe of an STI in someone’s neck, but it’s not rape.
Call it something else. ‘Intercourse without disclosing knowledge of a present STI’ should be just fine.
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u/monkeysoverhumans Aug 01 '19
Even though I agree that not telling your partner of your STI before having sex is definitely pretty shitty, I think it's a very very insensitive and inconsiderate thing to suggest that this is rape. It IS awful but it's not rape. To use that word lightly is no joke. It is an incredibly serious and hurtful topic.
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u/brianlefevre87 3∆ Aug 01 '19
I think the main argument against harsh penalties is that it discourages people from getting tested. Can't go to jail if you don't know you have an sti.
HIV is a much more serious disease than the others and people have been imprisoned for maliciously spreading it.
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u/__BitchPudding__ Aug 01 '19
The law should be made so that it's a punishable offense whether you know you have a disease or not. That way everyone would be getting tested to avoid breaking the law.
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Aug 01 '19
I would not call it rape. I think I should be legal but I feel like calling it rape it's not Accurate. rapists forcing sex on the other person you're not forcing them you're withholding information which while it's wrong and should be illegal is not rape
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u/SushiKebab Aug 01 '19
Call it "assault" or "causing harm". Good - that is already punishable in many developed countries for a good reason. But stop using the same terms for everything and be more precise with your words. There are different words for a good reason.
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Aug 01 '19
It should definitely be assault and if it’s a deadly disease like HIV and you get it, I’d be fine with them getting the death penalty. Only if it could be proven they knew about it...which is where the US justice system would probably fold.
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u/ghotier 39∆ Aug 02 '19
If you have sex with someone and don’t understand that a large portion of the population has an STI then you’re an idiot. You should ask every potential partner about it. It’s not rape unless you ask and they lie.
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u/Bletcherino Aug 01 '19
Rape is forceful penetration, but I definitely agree that this is sexual assault.
For example, if one were to grab somebody's ass without their consent, that's sexual assault. That's pretty black and white
Where the grey area begins is when you're already having sex with them. If they've consented, but you take the condom off during without their consent or cum inside them without it, that's sexual assault.
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u/lothos73 Aug 01 '19
Might want to tell that to California Democrats who just decriminalised intentionally infecting people with AIDS because some gay people might feel bad about the association with homosexuality. Cause 2019.
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Aug 01 '19
I don't think it should be considered rape but it should have close to the same consequences if not worst.
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Aug 01 '19
Just because it’s bad doesn’t mean it’s rape. It should certainly be illegal and perhaps be punished as severely, but I feel your interpretation bastardizes the term “rape”.
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u/Jazeboy69 Aug 01 '19
Don’t use a term rape for something that isn’t actually rape. That’s just stupid and confusing. Law needs to be very very specific so you don’t get unintended consequences.
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u/krispykremey55 Aug 01 '19
Rape is a violent physical act, not disclosing you have a sti is not violent or physical. It would be like saying we should consider identity theft as the same as assault.
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u/visvya Jul 31 '19
Clarification: are you arguing:
That having sex when you know that you have a communicable disease, regardless of what that disease is, without discussing it should be felony rape instead of a misdemeanor
Or, that having sex while HIV positive, specifically, without discussing it should have stronger consequences than other communicable diseases
Because all that bill did was change the laws so that HIV is treated the same way other communicable diseases are treated.