About AIDS

Should an HIV-positive person be criminally charged for having unsafe sex without disclosing HIV status? On Friday, April 13th, an unusual case was about to go to trial in Austin. Paul Hollingsworth, who knew he was HIV-infected but did not disclose it, had consensual but unprotected sexual intercourse with a woman co-worker. After subsequently testing HIV-positive, she charged him with sexual assault with a deadly weapon, HIV. At the trial's opening, Mr. Hollingsworth took a plea bargain of nine months' probation.

In some ways, it's too bad this case didn't actually go through trial, as it raises some very important issues. A trial - the first such in Texas - would have provided an opportunity to hash them out in public. Denied that, let's explore some of them this week and next.

First, the sexual assault charge (I would have preferred a reckless endangerment charge) turns on his having had unprotected sexual intercourse with the woman without disclosing his HIV-positive status. It does not matter whether he infected her or not, only that they had the sex, potentially endangering her life.

• Should redress be sought only if infection occurs? That's the opinion of some civil courts in other states.

• Would it have mattered if he had used a condom? Again, different answers from different jurisdictions. Because condoms, correctly used, reduce transmission likelihood to a very low level, the behavior might no longer seem so reckless or assaulting.

• What is "disclosure"? It can pit the word of the accuser against the accused.

• One point that the defense would probably raise is the source of her HIV infection: Does genetic testing of her virus demonstrate that the accused was the HIV source? (Yes, such testing can be done, within limits.) This might not erase the issue of having sex, per se, but if the infection came from elsewhere, a jury might take that seriously, indeed. Likewise, what other sex partners has the accuser had, and what is their HIV status?

These are just a few of the questions one might ask about this interesting case. Next week we'll look at some of the broader philosophical and questions beyond legal prosecution.