Margo Kaplan on Gawker, HIV, and Magic Johnson

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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9 Responses

  1. Ken Arromdee says:

    “But Gawker isn’t looking to disprove the very real fact that you can get HIV from sex with a woman.”

    That’s technically true but misleading. Yes, showing that this case didn’t come from a woman doesn’t *disprove* that AIDS can be caught from a woman. But it can certainly *reduce the perceived probability* that it can be caught from a woman. (And if the perceived probability is higher than the actual probability, this may be a public service.)

    This is especially so since most people estimate probability poorly, in a way that highly depends on being able to think of specific examples. Disproving a specific example should have an impact on that.

  2. Margo Kaplan says:

    Ken: I see your point, but I have to disagree. I would be more sympathetic if Gawker were stating that Johnson’s case has lead people to overestimate the probability of female-to-male transmission and that his odds of female-to-male transmission were actually quite small. (Full disclosure–I have not crunched these numbers. I know the odds of transmission in one sexual encounter, but multiple partners and the presence of other STDs would significantly affect the likelihood Magic would get HIV in his lifetime).

    If Gawker wants to provide information on the likelihood of female-to-male transmission, they can provide those statistics in an article that focuses on that particular issue. In this article, Gawker provides some poorly explained statistics that don’t clarify much, and probably even add to the confusion. Moreover, they use these statistics to serve the end of trying to demonstrate Magic didn’t get HIV from sex with a woman, rather than using Magic Johnson’s case to demonstrate that vaginal transmission is unlikely in general. The point is clearly to stir curiosity about Johnson’s sex life, not to provide information on HIV transmission rates.

    I also think that using Johnson as an example in any case wouldn’t help people estimate probability any more clearly. Sure, properly used examples can help people understand statistics, but a helpful example shows what these statistics mean in real life. In this example, it might be useful to compare the chance of HIV transmission to a similar probability, or, if using Johnson’s example, perhaps to discuss how multiple partners can increase transmission probability using numbers that are the product of scientific studies that had appropriate sample sizes.

    But what the article is looking for isn’t useful in this way. It’s looking for the way Johnson actually contracted HIV (and the identity of the individual, which is not useful at all). It’s a fallacy to say “Johnson didn’t get HIV through vaginal transmission, therefore the odds of vaginal transmission are small” just as it’s a fallacy to say “Johnson got HIV through vaginal transmission therefore the odds of vaginal transmission are large.” The likelihood that Johnson (or any individual) would get HIV from female-to-male transmission is unaffected by whether in reality Johnson actually contracted HIV through female-to-male transmission.

  3. I. Glenn Cohen says:

    Margo, great post! Do you have any ideas about how FDA’s approval of OraQuick (for home HIV testing) last week is going to inflect (i) the public health advocate argument that these laws will discourage testing, and (ii) the political economy behind the criminalization laws?

  4. Margo Kaplan says:

    Glenn, great questions, and I think it’s hard to know the answer, especially because there hasn’t been definitive evidence of how criminalization laws influence testing incentives and how they do so. It makes sense to me that these laws provide disincentives for testing, but I think it’s likely a complex interaction of several testing deterrents. To many people, the test results have no upside. Treatment is one of the best reasons for testing because treatments today are so effective. But many people can’t afford treatment. Even if they can, the treatment may have side effects that outweigh the benefits in the short term (for example, missing work and losing their job because of nausea from the drugs or the need for checkups). Add to that the stigma of being HIV-positive, the possibility that it will cost them relationships and community ties, the fear of discrimination at work, all significant issues. Criminalization adds another disincentive and also contributes to the stigma that may be one of the most significant deterrents. Home testing can help mitigate some but not all of these testing deterrents. I think it’s very possible that home testing may unfortunately increase support for criminalization laws by giving lawmakers and constituents the false impression that home testing removes more obstacles than it actually does. I suppose it’s possible that the home tests could be used against these laws to argue that individuals should buy lots of kits and insist on testing their partners before having sex, but I doubt that argument would gain traction for several reasons. What are your thoughts?

  5. Ken Arromdee says:

    “It’s a fallacy to say “Johnson didn’t get HIV through vaginal transmission, therefore the odds of vaginal transmission are small” just as it’s a fallacy to say “Johnson got HIV through vaginal transmission therefore the odds of vaginal transmission are large.””

    Which gives you two competing fallacies that cancel each other out.

    If people are looking at Magic Johnson and overestimating the chance of getting it from a woman, then if they learn that he didn’t, it could correct their overestimate. You are correct that logically speaking, neither of these should affect their estimate. But if it affected their estimate anyway, affecting it in the opposite direction is merely undoing the damage.

  6. I. Glenn Cohen says:

    Margo, I don’t have strong thoughts on the issue though (plug alert) the Petrie-Flom Center at Harvard Law will have a panel discussion on November 5 about the implications of OraQuick for the law and also hopefully some discussion of the recent approval by FDA of Truvada for pre-exposure prophylaxis (PrEP) among those at high risk for sexually-acquired HIV infection.

    My own sense is that actually these home kits may complicate the proof of knowledge of one’s HIV status in such prosecutions, in that there will be no public record that you were tested except your purchase of the kit.

    I also think there is a very interesting question of what this will do to sexual relations among groups sensitive to transmission and who may be able to afford repeated use of the tests if the price point is low enough (especially gay men). Will some subset of the community build testing one’s sex partner into their sexual habit, the way public health educators urge us to ask partners about his or her status? What will that do to sex and sexuality in America? It reminds me a bit of the scene in Gattaca where Uma Thurman tests Ethan Hawke’s genome post a first date…we live in interesting times!

  7. Ken Arromdee says:

    Perhaps we target HIV-positive individuals in the law, in our communities, and—as Gawker demonstrates—in our media—because we want to believe that they are not like us.

    If the punishment is too severe, perhaps we are not concerned enough for people who might have HIV. But if the punishment was too light, you could equally argue that we are not concerned enough for people who it might be spread to.

    This ends up being a catch-22 where any possible situation could lead to negative speculation about “our” motivations.

  8. Jeff McCurry says:

    Not long after Magic was diagnosed with AIDS he went on a speaking tour to raise awareness. One of the stops was the University that I do sports photography for and I attended the press conference before the assembly with my son who was about 10 at the time. There were only about 30 of us in a small theater and my son sat in the front row and watched while I was farther back taking photos. After the questions were over Magic walked up to my son and introduced himself and asked my son what his name was and what he was doing there. He pointed to me and said “that’s my dad taking your picture.” That smile that has become so well known blew up and Magic said “well then he is going to have to take some pictures of us together.” The two of them posed together sitting, standing, high fiveing, and many others. Thanks.

  9. Margo, great post; thanks for continuing to illuminate an issue about which there is persistent ignorance.

    Here’s a link to a resource on our website, in The Center for HIV Law and Policy’s Resource Bank, that charts the data on HIV transmission routes and risks developed by those who have crunched the numbers, so to speak:

    http://www.hivlawandpolicy.org/resources/view/681

    Miraculously, the CDC finally, after years of pleas, also just posted info on HIV transmission risks:
    http://www.cdc.gov/hiv/law/transmission.htm

    There was, by the way, a study published very recently suggesting that criminalization is in fact an HIV testing deterrent. It is or will be available via our website shortly.

    Catherine