Nov 18, 2005  |  By: CHRIS CRAIN  | COMMENTS     

person with less information. That’s especially the case if Carriker agreed to have unprotected anal sex, though if he was the bottom, the risk to Withrow was still negligible.

The U.S. Supreme Court pointed out in its sodomy decision two years ago that criminal laws shouldn’t be used to legislate morality, especially in cases like these where so much fear and ignorance clouds some very important variables. For all we know, Carriker was being successfully treated with medications that left his viral load undetectable, making the risk of transmission minimal even if he was a top during unprotected anal sex.

Criminal laws exist to protect people from actual harms, not imagined ones, and ought to be limited to those specific situations. I’ve written before in support of laws prohibiting someone who knows he is HIV positive from having unprotected, insertive anal sex with a man or woman without first disclosing his status. An even then the law should probably only be prosecuted when the victim is infected with the virus (even if it can’t be proved who actually is responsible).

That’s the sensible line drawn by the law in California, and it ought to be adopted in Washington, D.C., where prosecutors have taken the unusual and commendatory step of asking the gay community for input on what conduct should be made illegal. It is, after all, we who are at risk when gay sex is at issue.

And no criminal law, no matter how draconian, absolves HIV-negative women and men — including John Withrow and Carriker’s other sex partners, and including me — from taking responsibility for own health and insisting that a condom is used whenever we choose to be the bottom in anal or vaginal sex.