California is the first state to ban 'stealthing,' nonconsensual condom removal | Hacker News Reader

California is the first state to ban 'stealthing,' nonconsensual condom removal

npr.org

29 pointsnobody999957 comments

Now all they have to do is roll back SB239, which reduced knowingly exposing someone to HIV from a felony to a misdemeanor [1], and their laws might be somewhat sensible in this area.

[1] https://www.nbcnews.com/feature/nbc-out/new-california-law-r...

Wow. This seems highly illogical -- that someone could knowingly expose me to a deadly, incurable virus -- and only be charged with a misdemeanor.

Par for the course for California, really. If you live here you know every law has loopholes for whatever lobby or demographic group politicians need votes from. AB5, Prop 13, Prop 47, etc.

So you are saying that people who knowingly expose someone to HIV is a big enough voting block for politicians to pander to?

I think the main reason is that these laws were penned specifically to target HIV, not any deadly virus, and they were penned at a time of heightened paranoia against HIV.

This makes the law narrowly focused and if you want a law to protect you from "known deadly virus" then make that law, and you'll cover HIV and any other known deadly virus.

Where is the law for hepatitis? etc... the list could go on and the point is that this law was only targeting HIV.

It should include Hep C at the least.

That's missing the point, if you want a law to punish people for transmitting a disease intentionally, that's as specific as you need to get. The magnitude of the consequences for this law wrt HIV infection is also likely higher than would be applied to a general infection because of the paranoia/homophobia at the time of its writing.

So sure, go write a new law and make sure it covers a broad set of things without singling out a specific group that is already marginalized.

I disagree.

We have all transmitted diseases. And "intentionally" gets pretty interesting -- how many times have we come in to work sick because we haven't enough sick days?

The magnitude of the effect of the disease is what is important. A cold? Well, it happens. HIV ... not so much.

Context here in the thread was deadly diseases.

You take that risk every time you have sexual intercourse unprotected. You have no idea if someone contracted a sexual virus days before and doesn't even know themself. If you're not going to protect yourself and do your homework why should the government?

I'd just be careful with that. To be clear: I'm a huge fan of vaccine mandates. I'm less sure about charging people with crimes related to public health.

For reference: HIV/AIDS caused 4.7 deaths per 100K people with the virus in 2017.

https://www.cdc.gov/nchhstp/newsroom/2020/hiv-related-death-...

Covid has caused 216.36 deaths per 100K of the total population in the US

https://coronavirus.jhu.edu/data/mortality

Should anyone who breaks quarantine after testing positive be charged with a felony? Eh. Having a felony on your record is extremely serious.

Should someone be able to sue the person who infected them for all healthcare costs related to HIV going forward on the other hand? Absolutely.

https://en.wikipedia.org/wiki/HIV/AIDS#Prognosis: HAART and appropriate prevention of opportunistic infections reduces the death rate by 80%, and raises the life expectancy for a newly diagnosed young adult to 20–50 years. This is between two thirds and nearly that of the general population. If treatment is started late in the infection, prognosis is not as good: for example, if treatment is begun following the diagnosis of AIDS, life expectancy is ~10–40 years.

It seems in the best case scenario of early detection and treatment, HIV will shorten your life by a decade or more, so the 4.7/100K death rate is highly suspect. If I understand that paragraph correctly, if you wait until symptoms appear, you're already in the 10-40 years life expectancy group - so another ~decade lost.

As for breaking quarantine - yes, a felony is extremely serious. But so is knowingly exposing others to a 1/200 chance of death (or whatever the current risk is). So I do think a felony is appropriate - but the felony is for (non-consensualy) exposing others. If one can break quarantine without doing so (by e.g. walking alone on the beach, or in the woods, when the quarantine order mandated staying at home), then the crime should be appropriately reduced, just as it would be for someone with HIV whose medication has rendered the risk of transmission negligible/zero.

I should also point out that quarantine is a much bigger imposition on personal liberty, than a duty to inform sexual partners of any STDs you carry.

On the surface this might seem like it would increase risky behavior by infected individuals, but there's a rational reason for this law. It was advocated by epidemiologists for good reason: when someone could be criminally liable for said exposure, they'll absolutely stonewall public health officials who are trying to contact trace exposures. Adding criminal liability to the mix simply doesn't result in the desired outcome of stopping the spread of the disease.

Makes sense, but you're still condemning the victim to a lifetime of drugs and compromised immune system with little consequence.

I don't think any existing laws preclude civil suits for remediation of those damages. This is just removing the criminal charges.

It’s not highly illogical. The law aligns with the modern experience of HIV treatment which is that it can be managed such that there is negligible risk of transmission. Furthermore, intentionally transmitting HIV is still illegal. Finally, HIV had been treated unlike other dangerous, communicable diseases which can’t be cured with respect to criminal penalty. The law brings it to parity (misdemeanor, not felony).

Your comment seems to be downplaying the medical, economic, and social significance of contracting HIV in the modern age.

Your comment is an unproductive dead end. You hint at consequences in a general way that can’t be engaged with. It could be the “significance” is arbitrary and unjust, like the disparate treatment this law fixed. Finally, “contracting HIV” isn’t really at stake, because it’s totally not obvious that treating HIV disclosure as a felony actually has any relation to the risk of transmission.

It's only illogical if you ignore second order effects. Think of it this way: if knowingly exposing someone to HIV is a felony, are you more or less likely to know your status? From a health perspective, the priority is getting people to get tested and get treatment. Those laws run counter to that.

Not only is HIV treatable nowadays, it's also not particularly easy to contract, especially if the person is on ARVs. Let's do a thought experiment. If you're the receptive parter in anal sex with a partner with a detectable viral load, what do you suppose the chances of contracting HIV are? 1 in 5? 1 in 20? 1 in 50?

It's 1 in 72 (1.38%).

What about if the insertive partner is undetectable? Same thought experiment. 1 in 100? 1 in 1000? Trick question: it's 0%.

https://www.aidsmap.com/about-hiv/estimated-hiv-risk-exposur...

Making it a felony to expose someone to a disease that is treatable and only has, at most, a 1.38% of even being contracted is just wrong headed, a carry-over from a time when we didn't know much about HIV and when we didn't have safe, effective treatments.

It would definitely make sense to align these laws, if they would like to remain consistent.

Wasn’t SB239 mostly passed so that people whose HIV treatment has rendered it untransmissible can resume normal sexual activity without having to warn everyone they hook up with? I’d agree it’s a weird way to go about it - probably would be better to just make it not a crime at all if HIV has reached undetectable levels in your blood for at least six months instead of reducing it to a misdemeanor for everyone with HIV - but I often see people bring up this law without the context of the advancements in HIV treatment that motivated it.

Edit: Looks like it was mostly passed because the prior laws were almost exclusively used to charge sex workers with felonies when they’re brought in for minor charges like solicitation - they’d get convicted for solicitation, forcibly tested for HIV, and then get their misdemeanor solicitation charge upgraded to a felony if they tested positive, even if there’s no evidence they were going to engage in activity with a high risk of transmission or not take precautions to prevent transmission.

https://www.washingtonpost.com/news/to-your-health/wp/2017/1...

I think that a concern exists in some about the potential gap between "untransmissible" and someone saying that they are untransmissible. Compliance/adherence is a big deal. "In the United States, the rate of adherence to HIV therapy is generally low." as one meta-analysis went.

The right thing to do would be to legalize prostitution.

I guess "my body, my choice" somehow isn't a good enough argument for this.

I gotta disagree there -- that change merely brought HIV in line with other communicable diseases. Now, maybe one can make an argument that knowingly exposing someone to any of a class of communicable diseases, based on the seriousness of those diseases, should be a felony. But singling out HIV exposure to be categorically distinct from every other disease doesn't seem reasonable or just.

The HIV medications aren't exactly side effect free and, unlike STDs such as herpes, result in death if you don't take them. HIV isn't just another communicable disease.

You're right. HIV isn't just another communicable disease in someone with an undetectable viral load, it's just another untransmissible disease [0].

[0]https://jamanetwork.com/journals/jama/article-abstract/27209...

If you take diligent care to take the proper pill everyday, you can make in transmissible for your partner.

But the risk of you not doing so is _very high_ to your partner. As such, it should be disclosed. If there is trust between people, then its acceptable.

I would argue that the risk of someone not taking their medication is not "very high". The individual with HIV is highly incentivized to take their medication because it ensures their continued survival.

Then the solution is to raise the penalty for other diseases similarly severe as HIV, not lower the penalty for HIV.

Though I agree with the other comments that the risk of transmission should be taken into account (since medication, if taken, has lowered it considerably since the HIV-felony laws were passed), that's not what the law did.

What the law did was reconcile treatment of knowingly exposing someone to HIV with knowingly exposing them to another disease. If the law should take exposing someone to a disease more seriously, it should be for a broad category of diseases based on their actual attributes.

It just seems unhinged that in CA prior to that change, and in some places today, person A with well-managed or undetectable HIV can commit a felony for not disclosing that, where person B with literally anything else (e.g. drug resistant TB, ebola, whatever) cannot.

And frankly, why should we only think in terms of "communicable diseases"? My understanding is in many cases where companies have exposed whole populations to pollutants that had real health impacts, the legal remediation is civil lawsuits, not charging the company with a felony.

I live in the Bay Area. A while back I followed the story of a person with an active measles infection who traveled into SF. The DPH traced all their steps, published where they went at what times, which train car they were in, etc, but were fastidious to not reveal who this person was. Even though they risked exposing an indeterminate number of people, they were still expected to have a right to privacy. Today we have people claiming that anyone seeking to know their covid vaccination status is infringing on their rights to privacy about a health concern. Claiming that people with HIV should be _felons_ if they don't disclose their status, regardless of whether they're capable of transmitting, seems hard to justify.

There are a lot of reasons HIV exposure laws don’t work well: they treat HIV differently than any other disease (because they were originally designed as anti-homosexual laws), and the “knowingly” part discouraged people from getting tested, which is worse for public health. The law referenced in the OP article is about consent, not disease transmission.

If people don't get tested, they literally die. There's plenty incentive to get tested as-is.

Testing is not a cure.

When treatment isn't available, the game theory becomes "expose yourself legally by knowing something that won't help you" vs "ignore it".

It's not a cure but getting tested means you can be put on a myriad of near-cures.

The whole logic of this law is that getting HIV is no longer a death sentence after all.

This is for civil liability in "stealthing", specifically because criminal charges in this area are hard to prove, and DA's are thus reluctant to prosecute. Stealthing is already illegal in California.

I know this sounds weird but are we getting to the stage where you need some sort of legal agreement before you have sex with someone. I knew someone who after taking loads of drugs had sex with someone, regretted it and accused that person of rape. I don’t really know what to make of this particular thing but I’m pretty sure drunk people have sex and condoms fall off all the time, how are we to know that person deliberately removed the condom?

> legal agreement before you have sex

A contract that codifies trust? Once this would have been marriage. I don't know what it is today.

This legal agreement idea does not work at all. In most cases this agreement would have an expiration, only include specific actions and most likely could be withdrawn unilateral at any time. This makes an agreement basically worthless. The fact that people bring up technological solutions for social problems shows their inability to understand the messiness of social constructs.

This seems similar to rape cases but even harder to prove since as the act itself would starts with consensual sex. So how will it be proven in court?

Similar to the way most violent crimes are proven -- confessions.

Easier in cases where disease or pregnancy occurs despite an agreement to use protection.

A verbal agreement? Wouldn't it just be a he-said-she-said scenario? Or do you think people will have a written agreement? And even then, diseases can spread even with a condom. And, I would presume, the perpetrator will claim it was an accident it slipped out.

May be easier to prove actually compared to normal consent based case as the default would be if the act was agreed on or started with a condom then taking it off would be an offense.

Uh huh? So my question is, how is it easier to prove that's the case?

So the lady needs some proof that sex occurred without a condom. Then she also needs to prove both parties agreed to only use a condom beforehand. She also needs to prove that the guy deliberately took it out. Maybe they could put it on the blockchain.

The civil preponderance of the evidence standard literally can be met by ”he said/she said" testimony by whichever party the trier of fact (jury or judge, depending on if it is a jury or bench trial) finds more credible.

It’s not a crime (I mean, the same act is already a crime, but that's not the law in question), so the criminal “beyond a reasonable doubt” standard of proof doesn't apply.

Its easier to prove (but with more constrained consequences) than any crime, since its a civil tort and thus need only be proven by a preponderance of the evidence (loosely, whose story the jury feels is more likely true), not beyond a reasonable doubt.

How is this supposed to be enforced?

>How is this supposed to be enforced?

IIUC, it's a civil tort.

As such, "enforcement" is filing a lawsuit.

I guessed that much, but then aren’t you required as the filling party to prove:

1- that the removal did actually happen.

2- that you did not consent to the removal.

(1) is probably doable in most cases, but I can’t see how could you prove (2).

>(1) is probably doable in most cases, but I can’t see how could you prove (2).

That's as may be, but I wasn't involved in drafting the legislation, IANAL and I don't live in California. So I have no basis to evaluate your statements.

I merely answered your question, and even qualified it with "IIUC." I may not "UC". I may well be talking out of my ass. It doesn't smell that way, but...

That said, I'd speculate that since the standard of proof in a civil case is "a preponderance of evidence" rather than the "beyond a reasonable doubt" standard in criminal cases, it would likely be much easier to "prove" such a thing to a jury or a judge.

Again. IANAL. I just regurgitated what I read in TFA. So YMMV.

i hope they outlaw nonconsensual / stealth birth control stopping too.

no party should lie about their contraceptive status.

edit: most states don’t even require fathers to know about pregnancies or births. truly evil.

Is that really a thing?

Apparently so[0].

Wow. Just another example that there are some really stupid people out there.

[0] https://en.wikipedia.org/wiki/Non-consensual_condom_removal

Not only stupid but Evil.

If you know you have a DST and do this for me you should be charged as murder.

doesnt the encoding of morality as unenforceable law only add wasteful burden to the legal system?

condom failure is also a known event. Shouldnt condoms be sold as 'partial birth control' anyway?

Good, this seems like a no-brainer.

Ban stealthing? Isn't that just like actual rape?

Many legal judgements around the world calling it exactly that by case rulings:

https://en.wikipedia.org/wiki/Non-consensual_condom_removal#...

Silly and unnecessary law. The law they're amending arguably already made such contact illegal, this bill only adds two additional subsections specifically listing condom removal and subsequent touching as being offensive. Laws such as these should be written broadly, not narrowly/specifically. By including these two subsections the Legislature is indicating to defense attorneys everywhere that the existing broader language somehow did not already deem "stealthing" as harmful or offensive contact, which can be used to argue that a bunch of other sexual acts are not harmful or offensive contact unless specifically mentioned in the broader section. Good job busy body legislators!

Edit: On further reading this law also makes it an offense if the condom falls off during sex. "A person commits a sexual battery who does any of the following ... Causes contact between a sexual organ, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed." So if you cause contact after condom removal, regardless of how or why that condom was removed, you are now liable for sexual battery. Fantastic! /s

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...

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