UPDATE: On Thursday, February 20, The New York Times updated the column, adding a paragraph about about HIV criminalization at the end.
In a question-and-answer exchange published in The New York Times in early February, the paper’s “Ethicist” columnist, the New York University philosophy professor Kwame Anthony Appiah, told an anonymous query-writer that the writer did not have tell their sexual partners that they were living with HIV—even though 25 states still have laws criminalizing people with HIV for not disclosing their status before sex, often even if they are undetectable and hence no HIV is transmitted.
“I don’t think it’s controversial to say that a person with untreated H.I.V. is ethically obligated to disclose their status to their prospective sexual partners,” wrote the query-writer. “But if I’m incapable of infecting others (since I take my medicine every day) does the obligation remain?”
Appiah replied: “If you’re asked, you should tell the truth. But given the expectations people have in these casual encounters, you don’t need to volunteer your status.”
Screenshot of the Times’ “The Ethicist” column
But what Appiah did not say, or perhaps didn’t know, is that there is a legal component to the question. In truth, people living with HIV must know if they are having sex in a state with an HIV criminalization law, and, if they are, that they have some kind of documentation that they shared their HIV status with their sexual partner(s) before having sex, such as a clear and direct text exchange. A status on Grindr, Scruff or other hookup apps reading “I’m undetectable” may not be considered sufficient in a court of law because some people don’t know that “undetectable” refers to having HIV and that being undetectable (on HIV meds, like the query-writer) also means being unable to transmit HIV sexually.
POSITIVELY AWARE reached out to Appiah at both his New York Times and his New York University email on Thursday, February 13 to ask if he was aware of state criminalization laws when he wrote his column and, if so, why he did not mention them. PA also asked him if he would write a correction at once. After 24 hours without a response, PA forwarded the query to two editors at The New York Times Magazine, Bill Wasik and Jeannie Choi. Not hearing back from either of them, we forwarded the query to two staffers in the Times’ communications department on Saturday, February 15, asking for a response by 5pm ET on Tuesday, February 18.
They did not.
PA was not the only media outlet to pick up on Appiah’s omission. It was also noticed by Sean Strub, a longtime activist living with HIV and founder of Poz magazine who more than a decade ago started The Sero Project to advocate for the repeal or modernization of HIV criminalization laws. On February 4, he wrote to the Times that Appiah’s response to the query-writer “neglected to advise him that not disclosing his HIV-positive status, or not being able to prove he had disclosed it, could put him at risk of criminal prosecution.”
He continued: “Rarely is HIV transmission a factor in these cases; it is not unusual for [people living with HIV] to be charged even when the sexual behavior in which they engaged posed zero risk of HIV transmission… Punishments can be draconian, including required sex-offender registration and decades-long sentencing. Black and brown people, immigrants, sex workers and women are at greater risk of prosecution.”
Also, on February 5, Jada Hicks, senior attorney at the Center for HIV Law and Policy (CHLP), sent the Times a letter pointing out the potential danger of the omission: “The answer you posted is not only inaccurate but dangerous.
“The article claims that people living with HIV do not need to volunteer their status in ‘casual encounters.’ This is simply untrue and fails to acknowledge the realities of HIV criminalization laws in many jurisdictions. In many states, failure to disclose an HIV diagnosis before sex—regardless of actual transmission risk—can lead to severe legal consequences, including criminal prosecution, felony-level punishments, incarceration, or sex offense registration. This advice could put people living with HIV at legal risk, whether they are undetectable or not, and needs to be corrected.”
screenshot of NYT’s editor’s note
UPDATE: On Thursday, February 20, The New York TimeIs updated it the column, adding a paragraph about about HIV criminalization at the end.
“After this column was published, thoughtful readers alerted us to the complex legal ramifications of nondisclosure of H.I.V. status,” read an editor’s note that appeared but was nowhere to be seen hours later.
The column’s new last paragraph reads:
“Note that in some states, there can be criminal penalties for people living with H.I.V. if they do not disclose their H.I.V.-positive status before a sexual encounter. These circumstances may be important considerations for some people living with H.I.V.”