Is Criminalizing STDs a Good Idea?

Man in prison cell
Mature businessman sitting on bed in prison cell. Darrin Klimek / DigitalVision / Getty Images

The Issue of Criminalization

Not all moral questions should also be legal ones.There is a clear moral imperative to discuss a positive STD test with your current and potential sexual partners. However, the legal issues are far murkier. Despite the potential problems with criminalizing STD transmission, it is already illegal to have sex without disclosing a positive STD test in a number of jurisdictions.

Furthermore, there have been a number of prosecutions around the country and abroad. But is criminalizing unprotected sex and a lack of solid negotiation skills a good idea? Might it actually cause more harm than good?

People fail to disclose positive STD results for a number of reasons. Probably the most common one is shame. Sexually transmitted diseases are highly stigmatized in many cultures. It can be extremely difficult to have a discussion about an STD infection when you're in the early stages of a relationship. It doesn't help that talking about sex can be extremely difficult for many people, even without the baggage of an STD diagnosis. Finally, it can be hard to figure out when it is the appropriate time and place for the talk to take place. Too soon, and it may feel like the sex conversation will interfere with the process getting to know each other. Too late, and there is the risk of causing resentment or feelings that someone has been put unnecessarily and unfairly at risk.

It's also important to mention that punishing people for failing to disclose an STD diagnosis is not actually a terribly effective way of reducing STD risk. Individuals can and do remain unaware of asymptomatic STD infections for years. Many doctors do not reliably and regularly screen their patients for even the most common bacterial STDs.

Some actively avoid screening for the highly stigmatized diseases such as HIV and genital herpes. As such, the majority of people who are infected with STDs are probably unaware of that fact.

What's At Stake?

In my opinion, there are two major systematic problems with STD criminalization laws:

  1. They unfairly punish people who are responsible enough to undergo regular STD screening.
  2. Since poor and minority individuals are more likely to seek health care at ERs and public clinics, and thus potentially more likely to be screened, they are also more likely to be targeted by this legislation.

The nature of my first objection is obvious. You can only be criminally prosecuted for knowingly spreading an STD if you know you have an STD. Unfortunately, since the vast majority of people who are infected with STDs have no idea of that fact, only those individuals who are responsible, or symptomatic, enough to seek out testing can be subject to prosecution under these laws. There are  hundreds of thousands of people who don't get tested regularly because they either don't believe they're at risk or would rather not know if they're positive.

Under these laws, they can continue to expose their partners with no worry about any legal consequences - just personal and emotional ones. I therefore think that criminalization actively creates a disincentive for testing. That is a real problem since it's difficult enough to convince people to get tested for STDs as it is.

As for my second objection, young, poor, and minority individuals are more likely to to be considered as high risk by their doctors and thus are more likely to get tested. They're also more likely to visit public clinics like Planned Parenthood where such testing is standard. As a result, they may be put disproportionately at risk by knowing their STD status while lacking many of the skills or opportunities to deal with any infection in a healthy way.

Still, those are only the systematic issues. My other real concern about STD criminalization is that it flies in the face of my belief in the importance of personal responsibility. Outside of sexual assaults and other coercive sexual experiences, people need to be encouraged to take responsibility for their own sexual health. That's a better idea than encouraging them to sue their partners after the fact. I worry that giving people a legal excuse for not bringing up a sensible pre-sex checklist -- including talking to potential sexual partners about whether they've been STD tested, what they've been tested for, and the importance of practicing safe sex -- just encourages them to not think about the risks of sex. It doesn't encourage them to face those risks head on. 

Things to Think About

If you know you are infected with an STD, you should talk to your partner about your diagnosis before having sex. That's true both because it's the right thing to do and because it may protect you from criminal prosecution for failure to disclose that STD. Laws on the topic vary from jurisdiction to jurisdiction. However, it's a relatively simple matter to keep yourself safe from prosecution in most states. All you have to do is disclose any infections to your partner before having sex; practice safer sex; and otherwise behave like a responsible, conscientious, and caring adult.

Hopefully, you're doing all of those things anyway. It may be scary to discuss STD risks with a romantic partner. Some people may not be able to handle it. Still, it's far better to give them an honest choice before things begin. People with STDs can and do find love, but it's a lot harder to keep that love when the relationship starts off with a lie. Furthermore, not having an official diagnosis of your infection may be a legal excuse. In the end, though, it does nothing to protect you against partner blame - even when it seems like it should.

Continue Reading