Criminalization of Non-Disclosure of HIV Status: Should Nebraska require partners to be informed if you have HIV?
Published Sunday December 14, 2008
The teenager sits saddled with the virus that can cause AIDS - a virus he said he got from his sexual relationship with a man he met on the Internet.
A virus that means he will have to spend the rest of his life taking a battery of medications. A virus that could cause his death.
A virus that, he said, Allen J. Moore, 48, never mentioned.
And the teen is burdened by something else: the thought of who else Moore might infect.
In May 2007, the then-17-year-old went to an Omaha police officer at his high school and told his story in excruciating detail.
Police, in turn, went to question Moore.
What they found confirmed the young man's fear.
At a detective's knock, Moore opened the door naked. He was answering questions when a 16-year-old boy stepped out of his bedroom.
The 16-year-old - by law, old enough to consent - acknowledged that he and Moore had just engaged in unprotected sex.
"Did he tell you he was HIV-positive?" the detective asked.
"No," the youth said.
Moore was taken into custody that night.
But he wasn't arrested for failing to tell his partners that he has HIV.
The reason: Unlike Iowa and 31 other states, Nebraska has no law making it a crime to fail to inform an intimate partner that you have HIV.
The Nebraska Legislature's Judiciary Committee considered such a law four years ago, but some senators say the proposed statute was written too loosely - and provoked too many "what if" questions about enforcement. The bill died.
Now, the committee chairman said senators likely will revive the bill, in some form, next session.
State Sen. Brad Ashford of Omaha said some laws must be enacted to protect society from such "heinous" behavior.
But advocates wonder whether the law will do more harm than good by further stigmatizing people with the virus.
Stigmas, they say, make it less likely that people will get tested. Less testing, in turn, leads to more people with the virus.
Sharon Renter, outgoing executive director of the Nebraska AIDS Project, said she shares concerns about "the few individuals" who are intimate with others without disclosing their medical status.
But Renter said she has no doubt that such a law would deter people from getting tested.
With the advancements in medications treating the virus, Renter said, it's crucial that people get tested early so they can begin treatment.
Every year, Renter said, about 150 Nebraskans test positive for HIV. Nearly half of those people already have developed AIDS - meaning they've potentially had HIV for years before they got tested.
Renter said it might seem illogical that people would endanger their own health just to avoid a potential criminal consequence.
But she said the stigma surrounding HIV remains strong.
Not long ago, she said, she had a police officer tour the Nebraska AIDS Project building in Omaha to suggest security improvements. At the sight of the officer, she said, clients scattered. People skipped appointments. Phone calls and questions poured in.
Why are the police there? Are they scouting us out? Are they collecting names?
Renter said her clients' fears would be magnified if their HIV status had potential criminal consequences.
"We can't make this any more of a stigma than it already is," Renter said. "I'm much more concerned about the effect this kind of law would have on the number of people willing to get tested than I am on the one person in the next seven years who might intentionally infect someone else."
In Iowa, the law seldom has been used. Just six people were convicted in the law's first seven years.
And there's no reason to believe it would be used more in Nebraska, authorities said.
But just because it would be rarely used doesn't mean it isn't necessary, Ashford said.
"It is true that not everything is worthy of a criminal statute," Ashford said. "But we enact laws to set a standard in the community.
"In this case, if you're aware of your (HIV) condition and you know it's transmittable, then you have a duty to inform. Otherwise, you're condemning somebody to what you've been condemned to."
State Sen. Ernie Chambers, who considered such a bill in 2004, agreed that such behavior amounts to "reckless endangerment."
Four years ago, a woman approached him and other lawmakers. She had been in a long relationship with her fiance: a live-in boyfriend who denied that he was HIV-positive. He even altered a medical report to make it appear that he didn't have the virus.
It wasn't until months later that the woman found out, through the man's ex-wife, that he was HIV-positive.
Chambers called the man's actions "reprehensible."
But in the end, the Omaha senator said, he couldn't resolve several questions about enforcement of a law introduced then by State Sen. Lowen Kruse of Omaha.
What if an HIV-positive drug user shares a needle with another drug user? Is his clouded state of mind a defense?
What if an accused person didn't know his HIV status? Would he be forced to prove his innocence?
What if a spurned lover lodges the charge against a person out of vengeance?
"I'm very cautious about creating new categories of crimes," said Chambers, a longtime Judiciary Committee member who is leaving the Legislature at year's end because of term limits.
"The visceral reaction might be 'There ought to be a law.' But when you try to weigh the good that might be accomplished against the downsides, a law like this might work more injustice than justice."
Renter also questioned how society can insist that an HIV-positive person inform others, while not insisting that people practice safe sex. In this case, both teenagers acknowledged they had unprotected sex with Moore.
"It's a personal responsibility issue," Renter said. "It's not my responsibility to keep other people from doing things to individuals. It is my responsibility to encourage people to take responsibility for themselves."
Chambers and Renter both said that prosecutors ought to use existing assault laws rather than create a new law that specifically targets HIV.
Douglas County Attorney Don Kleine said no reputable prosecutor wants to target specific groups - noting that HIV has nothing to do with sexual orientation. In fact, Kleine suggested that a new law could include people who knowingly expose people to other infectious diseases, such as resistant tuberculosis.
In Moore's case, Kleine said he considered multiple existing laws, including assault charges.
However, first-degree assault requires that prosecutors prove two elements - that the victim suffered serious bodily harm and that the defendant intended to cause that harm.
Second-degree assault is assault with a deadly weapon, but the list of weapons doesn't include a virus.
So Kleine wrestled with what to do with Moore - a man who is no stranger to police or court actions.
Moore declined to answer a reporter's questions.
According to court records:
Moore has no relationship with any of his nine children by five women. The courts stripped him of his parental rights to several children - and Moore's oldest son is in prison for the sexual assault of a child.
Moore told authorities that he was molested as a child, that he has been attracted to children, has had numerous male and female partners and has worked as a prostitute.
Moore, who told authorities he contracted HIV in 2004, said he discloses his status to lovers, but that most of them have HIV, too.
He said he does not disclose it during one-night stands - but that he uses a condom in those encounters.
The two teenagers interviewed by police disputed that. Both said Moore had unprotected sex with them and other teenagers.
The 17-year-old, who met Moore on the Internet, said he didn't find out until he tested positive for HIV and gonorrhea.
The 16-year-old said Moore "never told me" he has HIV. That teen told police in November 2007 that he had not tested positive.
The problem for prosecutors: Under state law, the teens had reached the age - 16 - where they could give their consent to sex.
Unable to charge Moore with statutory rape, police and prosecutors had to get creative.
An Omaha police search of Moore's house turned up a videotape of Moore, the 17-year-old and another teenager engaged in sex acts.
Though it's legal for adults to have sex with children 16 and over, it is illegal for anyone to videotape a child under 18 who is engaged in a sex act.
Kleine charged Moore with visual depiction of a minor engaged in a sex act - a felony punishable by up to 20 years.
Moore pleaded no contest to that charge, was convicted and was scheduled to be sentenced last week.
But as District Judge Gary Randall informed him that he would have to register as a sex offender, Moore vigorously shook his head.
"That's not what I agreed to," Moore said, over and over. "I was not advised of that."
The judge insisted he was but delayed sentencing until a court reporter could prepare a transcript of an earlier hearing.
Before leaving the courtroom, Moore insisted that he would never agree to register as a sex offender.
Prosecutors found that telling.
Once again, they say, Moore doesn't want anyone to find out about him.
World-Herald librarian Jeanne Hauser contributed to this report.