the post below prompted a short e-mail conversation with someone who was attending the xvi international AIDS conference in toronto. she is far better versed in the government/disease side of the issue than i, and after a back-and-forth regarding the per-coitus transmission probability vs. the lifetime transmission probability (“in high prevalence countries you get a lifetime risk of 50% of becoming infected with HIV between the ages of 15 and 50.”) she wrote:

I’m not convinced there is a compelling state interest, no matter what the transmission probability. And if there is a narrowly-written enough compelling interest, there shouldn’t be a statistical probability threshold. If I shoot a gun in your direction, the attempted murder charge does not depend on if I miss you by a little bit or by a lot.

her last sentence hits exactly on the discussion i had about the SCOIA decision with a physician who coincidentally also has done some work related to HIV/AIDS. it’s the question of intent.

a required element of attempted murder is the specific intent to kill at the time (to use the example above) the gun is fired. in contrast, iowa’s “criminal transmission of HIV” law creates a statutory crime; no intent to transmit the virus is required. what is being criminalized is not the intent to expose another to HIV (or even the intent to transmit the virus), but simply exposing another to the virus without that person’s prior informed consent.

(aside, perhaps to address at a later point: it seems to me that should be cause for a private tort action, not criminal prosecution.)

bringing that back to the “compelling government interest,” which the court described as

the protection of public health by discouraging the transmission of the AIDS virus.

i have a hard time wrapping my head around the idea that the statute, as written, actually has anything to do with the stated purpose. uninformed exposure is criminalized; informed exposure is an affirmative defense. and yet whether the exposure is informed or uninformed does not affect the probability of viral transmission, which is what the statute purports to discourage. (the opposing argument is probably that fewer people will consent to unprotected sex if they know their potential partner is HIV+, thus reducing the population probability of disease spread).

a state’s use of its police powers to promote public health — unlike its interest in discouraging murder, rape, or other activities — must be based on probabilities, especially when the laws infringe on constitutionally protected rights. otherwise how to determine whether the government’s interest in compelling? in essence, as i wrote below, what is it about HIV/AIDS that makes the government’s interest in discouraging its transmission greater than its interest in discouraging the transmission of other viruses, such as epstein-barr or varicella? is it a hidden morality issue, the fact that the disease is transmitted through sexual contact and drug paraphernalia?

rather than engaging in any discussion of why the government’s interest is compelling, SCOIA simply quotes a louisiana decision:

“No one can seriously doubt that the state has a compelling interest in discouraging the spread of the HIV virus.”

more thoughts later.