Comments on: More Law in the Bedroom http://www.concurringopinions.com/archives/2008/07/more_law_in_the_1.html The Law, the Universe, and Everything Sun, 22 Nov 2009 04:22:46 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Julian http://www.concurringopinions.com/archives/2008/07/more_law_in_the_1.html/comment-page-1#comment-48197 Julian Fri, 25 Jul 2008 15:22:37 +0000 http://www.solove.org/archives/2008/07/more-law-in-the-bedroom.html#comment-48197 I agree with the court on this one. Just as it is the individual's responsibility not to shoot people, it is the individual's responsibility to know their own infection status and not put others at risk, regardless of whether said other asked or not. To engage in sexual activity with people without using protection when one is HIV positive (or a carrier of any STD for that matter) is, at least, reckless endangerment. This is less a matter of a government sticking its nose into the bedroom, and more one of a government demanding a modicum of personal responsibility from its citizens. I agree with the court on this one. Just as it is the individual’s responsibility not to shoot people, it is the individual’s responsibility to know their own infection status and not put others at risk, regardless of whether said other asked or not. To engage in sexual activity with people without using protection when one is HIV positive (or a carrier of any STD for that matter) is, at least, reckless endangerment. This is less a matter of a government sticking its nose into the bedroom, and more one of a government demanding a modicum of personal responsibility from its citizens.

]]> By: Shane Hartman http://www.concurringopinions.com/archives/2008/07/more_law_in_the_1.html/comment-page-1#comment-48196 Shane Hartman Thu, 24 Jul 2008 00:47:32 +0000 http://www.solove.org/archives/2008/07/more-law-in-the-bedroom.html#comment-48196 Ha...great video. I guess there is hope in this dismal job market for recent law grads like myself after all. Ha…great video. I guess there is hope in this dismal job market for recent law grads like myself after all.

]]> By: Kaimi http://www.concurringopinions.com/archives/2008/07/more_law_in_the_1.html/comment-page-1#comment-48195 Kaimi Thu, 24 Jul 2008 00:43:26 +0000 http://www.solove.org/archives/2008/07/more-law-in-the-bedroom.html#comment-48195 "Advice: always bring a lawyer to bed." You mean, like this? http://www.glumbert.com/media/consent “Advice: always bring a lawyer to bed.”

You mean, like this?

http://www.glumbert.com/media/consent

]]> By: Shane Hartman http://www.concurringopinions.com/archives/2008/07/more_law_in_the_1.html/comment-page-1#comment-48194 Shane Hartman Thu, 24 Jul 2008 00:21:25 +0000 http://www.solove.org/archives/2008/07/more-law-in-the-bedroom.html#comment-48194 I agree that the power differential is an important consideration in assessing civil or criminal liability for infecting another with HIV. I would add that on some level this power differential is a function of the biological mechanics of sex (or at least our cultural interpretation of those biological mechanics). The would apply in both the context of heterosexual and male homosexual sex. One way of addressing this problem might be to impose a standard of consent similar to the standard used to evaluate if sex is consensual. One of the salient questions here is, how many times must the receptive partner demand that the "active" partner wear a condom before the active partner has acted in a way that will make him presumptively negligent if he communicates HIV to the receptive partner. For the sake of drawing a clear line, I would argue that a "No means no" standard be applied and that if the active partner would reasonably know that the receptive partner was demanding that he wear a condom, even once, that he is negligent for not doing so. I couldn't help but notice that in the Swiss case the victim was charged with "failure to insist upon protected sex." Is insistence necessary? If we conclude that insistence is not necessary and we apply a consent-like standard, how can we create a manageable rule without getting muddled up in endless ambiguity? It seems that a bright line rule is appropriate, even if it means forcing the active sexual partner to bear more of the onus for the decision about using the prophylactic. However, even the approach I am suggesting is not nearly as harsh as the approach applied by the court in this Swiss case. One other thought: how does the existence and availability (at least in the U.S.) of the "female condom" influence this question about negligence for HIV transmission? I agree that the power differential is an important consideration in assessing civil or criminal liability for infecting another with HIV. I would add that on some level this power differential is a function of the biological mechanics of sex (or at least our cultural interpretation of those biological mechanics). The would apply in both the context of heterosexual and male homosexual sex. One way of addressing this problem might be to impose a standard of consent similar to the standard used to evaluate if sex is consensual. One of the salient questions here is, how many times must the receptive partner demand that the “active” partner wear a condom before the active partner has acted in a way that will make him presumptively negligent if he communicates HIV to the receptive partner. For the sake of drawing a clear line, I would argue that a “No means no” standard be applied and that if the active partner would reasonably know that the receptive partner was demanding that he wear a condom, even once, that he is negligent for not doing so. I couldn’t help but notice that in the Swiss case the victim was charged with “failure to insist upon protected sex.” Is insistence necessary? If we conclude that insistence is not necessary and we apply a consent-like standard, how can we create a manageable rule without getting muddled up in endless ambiguity? It seems that a bright line rule is appropriate, even if it means forcing the active sexual partner to bear more of the onus for the decision about using the prophylactic. However, even the approach I am suggesting is not nearly as harsh as the approach applied by the court in this Swiss case. One other thought: how does the existence and availability (at least in the U.S.) of the “female condom” influence this question about negligence for HIV transmission?

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