A 26-year-old gay man is sitting in a Fayette County, Ga., jail for having sex with another man.Gary Wayne Carriker, a fourth-year medical student at Emory University in Atlanta, was convicted and sentenced to 10 years in prison for felony reckless conduct: gay sex that was private, consensual and of a type routinely engaged in by literally tens of thousands of men who read this publication.
About half the states have criminal statutes like the Georgia law under which Carriker was charged and convicted — a law based on assumptions about gay sex that are just as steeped in fear and prejudice as the sodomy laws struck down by the U.S. Supreme Court only two years ago.
The difference? The fear and prejudice in Carriker's case isn't just about gay sex generally, but also the AIDS virus in particular.
His crime? He had a four-month relationship with John Withrow, 25, during which the two men engaged in private, consensual oral and anal sex. Carriker is HIV-positive, and did not disclose that fact to Withrow, who is HIV-negative.
That is all that prosecutors in semi-rural Fayette County needed to go after Carriker, and go after him they did. Georgia law makes it a criminal felony to "expose" someone to the AIDS virus if you know that you're HIV positive and don't tell the other person.
It doesn't matter under Georgia law whether the sex is protected or unprotected, just as it doesn't matter whether the sex is anal or oral, much less whether the poz participant was insertive or receptive.
After all, a significant number of Georgia legislators still see AIDS as God's vengeance for the sin of homosexuality anyway, so for them there's no need to distinguish between types of sexual conduct and the actual risk of HIV transmission.
That leaves the decision of whether to bring charges to the discretion of prosecutors, and you can imagine the level of sensitivity on this issue in small-town Georgia. Asked by Southern Voice, a publication affiliated with the Blade, whether Carriker was the insertive or receptive partner in the sex with Withrow, the Fayette prosecutor was predictably grossed out.
"I didn't get into those kinds of details," he sniffed, after having obtained his conviction and lengthy sentence.
Well, if the "ick factor" is that bad for these prosecutors, who deal with all levels of gore and violence in other cases, they had no business bringing charges in the first place.
In the real world of icky gay sex, the risk of HIV transmission varies dramatically based upon the type of sex, the role of the participants and, of course, whether a condom was used.
Each time two men engage in oral sex, the chance of contracting HIV is about 1 in 10,000, and that 0.01-percent risk arises under unusual circumstances, like bleeding gums on the receptive partner and/or recent HIV exposure to the insertive partner, when the amount of virus in his semen is higher.
Regardless, the general risk is so low that the law should always exclude oral sex as a basis for criminal prosecution.
That means prosecutors in urban, gay-friendly Fulton County (which includes Atlanta) should immediately drop a second set of charges Carriker faces there for simply engaging in oral sex without disclosing his status. (Fulton prosecutors were apparently also too squeamish to ask if Carriker was the insertive or passive participant in the grand total of two occasions on which those charges are based.)
In anal sex, the danger of contracting the AIDS virus is similarly negligible for an HIV-negative insertive partner (or "top") whether or not condoms are used. And if they are, the HIV-negative receptive partner (the "bottom") faces negligible risk as well.
Fulton prosecutors have also brought charges against Carriker for having oral and anal sex with a second Atlanta man and they say Carriker was the top; but it's unclear whether the sex was protected or not. That fact is crucial in determining whether to go forward with the prosecution.
The point is that, under the law in Georgia and most other states, none of these niceties matter, unless the rare informed and enlightened prosecutor cares to look into them.
With so much ignorance and fear still surrounding HIV and AIDS, and so much bigotry still directed at homosexuality, the law that put Gary Wayne Carriker behind bars for up to 10 years ought to be repealed, and our gay rights groups should demand it.
We do know that in the case of Carriker and ex-boyfriend Withrow, the sex was oral and anal, and it was unprotected. Should Carriker, the med school student, have disclosed his HIV status to Withrow? Absolutely.
As an ethical and moral matter, someone with more information about the risk of exposure should always disclose it to the 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.
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, us 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.
from NYBlade Blog
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