Discussion

Should it be illegal for HIV-positive persons to have unprotected sex without disclosure? An

examination of attitudes among US men who have sex with men and the impact of state law

Keith J. Horvath*, Richard Weinmeyer and Simon Rosser

Division of Epidemiology and Community Health, University of Minnesota, 1300 South 2nd Street, Suite 300, Minneapolis, MN 55403, USA

(Received 6 April 2009; final version received 1 February 2010)

The aims of this study were to describe the overall pattern and predictors of attitudes toward criminalizing unprotected sex without disclosure by persons living with HIV among a broad sample of men who have sex with men (MSM) living in the USA, and to examine whether attitudes and sexual risk behavior differ by states with HIV-specific laws or no such laws. Participants (n�1725) were recruited in a 3.5 month period to complete a cross-sectional 70-minute online survey assessing attitudes and high risk sexual behavior. Participants self- identified as male, 18 years of age or older, a US resident, and having ever had sex with a man. In addition, participants were coded as residing in a state with HIV-specific laws or not. Results showed that most (65%)

respondents believed it should be illegal for persons living with HIV to have unprotected sex without disclosure. However, among the total sample and HIV-positive MSM, attitudes and unprotected sex with recent partners did not vary by state law. Believing that it should not be illegal for persons living with HIV to have unprotected sex

without disclosure was associated with HIV-positive status (OR�0.33), higher education (ORs�0.42�0.64), gay orientation (non-gay orientation: OR�1.54), perceptions that state residents were somewhat or very accepting toward homosexuality (OR�0.75), unprotected anal intercourse with two or more recent sexual partners (OR� 0.72), and lower perceptions of responsibility (OR�0.75). The results did not support the proposition that HIV- specific laws deter high-risk sexual behavior, however further research is needed to examine whether they act as a barrier for MSM at highest risk for acquiring or transmitting HIV.

Keywords: HIV; law; sexual risk behavior; men who have sex with men

Introduction

Despite the adoption of a rights-based approach by several notable global HIV/AIDS organizations (UNAIDS, 2008; World Health Organization, 2008), at least 30 persons have been prosecuted for HIV exposure in the USA since 2008 (The Center for HIV Law and Policy, 2009). Penalties range from a US$100 fine to up to 30 years of imprisonment (Global Network of People Living with HIV, 2009). Although the degree to which HIV-specific laws undermine or support national HIV prevention efforts continues to be debated (Burris & Cameron, 2008; Galletly & Pinkerton, 2006; Lowbury & Kinghorn, 2006; Weait, 2007), there is a continuing need to understand the attitudes that persons from groups disproportionately affected by the HIV epidemic hold about such laws, and how HIV-specific laws affect sexual behavior (UNAIDS, 2008).

Assessing the impact of HIV-specific laws in the USA is complex as laws vary across states on several dimensions, including whether one has knowledge of his or her HIV status, whether or not HIV status disclosure occurred, or if there was a clear intent to

transmit HIV. To examine whether HIV-specific laws,

and knowledge of such laws, influenced condom use,

Burris, Beletsky, Burleson, Case, and Lazzarini (2007)

interviewed 482 men and women living in a state that

either has a HIV-specific law requiring disclosure of

HIV status by infected individuals (Illinois) or a state

that has no such law (New York). Approximately

45% (n�219/482) of respondents believed the law prohibited HIV-positive individuals from having sex

without using a condom. With respect to anal sex,

neither living in a state with a HIV-specific law

nor having knowledge of the law was significantly

associated with increased condom use. However,

participants living in Illinois who disclosed their HIV

status were less likely to use condoms, while New York

residents who disclosed were more likely to use a

condom. An online study of men who have sex with

men (MSM) in the UK showed that over half (57%) of

participants believed it ‘‘is a good idea to imprison

people who know they have HIV if they pass it to

sexual partners who do not know they have it,’’ with

25% being unsure, and 18% opposed (Dodds, 2008;

Dodds et al., 2009). Men who had never been tested for

*Corresponding author. Email: [email protected]

AIDS Care Vol. 22, No. 10, October 2010, 1221�1228

ISSN 0954-0121 print/ISSN 1360-0451 online

# 2010 Taylor & Francis

DOI: 10.1080/09540121003668078

http://www.informaworld.com

HIV in this study were more likely to support

imprisonment than those who had tested negative for

HIV or who self-reported as HIV-positive, while HIV-

positive participants tended to believe that responsi-

bility for negotiating sexual exchanges rested with

both partners. Overall, these and other (e.g., Adam,

Elliott, Husbands, Murray, & Maxwell, 2008) studies

suggest variation in knowledge of and attitudes toward

laws that criminalize unprotected sex among persons

living with HIV. MSM remain the largest population infected with

HIV in the USA and similar countries (Centers for

Disease Control and Prevention, 2008; Sullivan et al.,

2009). Studies are lacking that examine the attitudes of

MSM living in the USA toward laws that prohibit

unprotected sex by HIV-positive individuals without

disclosure. Therefore, the aims of this study were to:

(1) describe overall attitudes toward criminalizing

unprotected sex without disclosure by persons living

with HIV among a broad sample of MSM living in the

USA; (2) examine whether attitudes and sexual risk

behavior differ by states that either have HIV-specific

laws or no such laws; and (3) determine the demo-

graphic, psychosocial, and behavioral predictors of

attitudes toward criminalizing unprotected sex with-

out disclosure by HIV-positive persons. The results

have implications for policy-makers regarding crim-

inal laws surrounding HIV transmission, as well as for

prevention efforts aimed to reduce rates of HIV

infection in the USA.

Method

Recruitment and enrollment

Recruitment was guided a priori by the degree to

which legal and HIV experts believed that state laws

were generally favorable or unfavorable to gay,

lesbian, bisexual, and transgender (GLBT) residents

living in US population centers, and matched on

population size and the number of alcohol establish-

ments catering to the GLBT community. Participants

were recruited in a 3.5 month period in 2008 using

online banner advertisements placed on two websites

popular among gay and bisexual men to meet sexual

partners, and targeted toward men living in the

selected population centers. Banner ads stated, ‘‘Par-

ticipate in University Research on Sex and Alcohol

and Earn $30’’, included the university and study logo,

and a picture of a man. Participants must have self-

identified as male, been 18 years of age or older, and

have ever had sex with a man to be eligible for

the study. Of the men who clicked on the banner ad

(n�3370), 56% (n�1874) met eligibility requirements

and enrolled in the survey, and 92% (n�1725) of these men completed the survey.

Procedures

All procedures were approved by the University of Minnesota Institutional Review Board and a federal Certificate of Confidentiality was obtained to guard against the subpoena of participant data. Participants who clicked on the study banner advertisement were taken to a secure study website. Prospective partici- pants viewed a welcome page with an overview of procedures and information about the study and staff. After answering eligibility questions, eligible respon- dents were guided through a series of consent pages (Rosser, Gurak, et al., 2009). An email was sent to participants with a link to the survey for re-entry if they chose to discontinue before completion. Partici- pants who started the survey without finishing were sent reminders. The mean completion time was approximately 70 minutes. Automated and manual de-duplication and validation protocols were applied to ensure that each case represented a unique respon- dent. Ineligible persons viewed a web page that thanked them for their interest.

Measures

Items used for the purpose of this study were taken from a larger online survey of online and offline sexual attitudes and behaviors, substance use, and laws relevant to the GLBT community. Using algorithms, participants were asked a variable number of items depending on their responses. Participants responded to each relevant question with either their answer or by clicking a ‘‘refuse to answer’’ option.

The main outcome variable of interest was: ‘‘should it be illegal for an HIV-positive person who knows his or her status to have unprotected sex without telling the other person of their HIV-status?’’ Response options were: ‘‘no, it shouldn’t be illegal,’’ ‘‘I don’t know,’’ or ‘‘Yes, it should be illegal.’’

Demographic factors (see Table 1) included age (open-ended format), HIV-status (calculated from two questions of when they had their last HIV test and whether they have ever been diagnosed with HIV), ethnicity (Hispanic versus non-Hispanic) and race (check box for American Indian, Asian American, Black, Pacific Islander, White, or an open-ended text box for ‘‘other’’ race), and educational attainment. Participants self-reported their sexual identity (gay, bisexual, heterosexual, or a different sexual identity), as well as their comfort with their sexual orientation (Likert scale from 1�Very Comfortable to 5�Very Uncomfortable). Men were asked to report the poli- tical party for which they tend to vote, and how gay

1222 K.J. Horvath et al.

Table 1. Sample sociodemographics.

Should it be illegal for an HIV-positive person who knows his or her status to have unprotected anal sex without telling the other person of

their HIV-status? a

Total

(n�1725) No

(n�393) Don’t Know

(n�213) Yes

(n�1116)

Column (%) Row (%) Row (%) Row (%) Chi-square value

Age 47.28*** 18�20 7 11 10 79 21�30 41 18 11 71 31�40 24 28 12 61 41�70 28 28 16 56

HIV-status 112.21*** Negative 77 18 12 70

Positive 14 48 14 38 Never tested 9 20 11 69

Ethnicity/race 0.65

White 76 23 12 65 Hispanic 15 21 13 65 All other 8 22 12 66

Education 20.03** H.S. or less 11 17 8 75 Technical/some college 37 21 12 67 College degree 34 25 14 62

Grad degree 18 27 15 58 Sexual identity 15.44*** Gay 86 24 13 63

Other (e.g., Bisexual) 14 17 7 76 Comfort with sexual orientation 14.80** Very 60 25 13 62

Comfortable 25 19 14 67 Less than comfortable 15 19 9 72

Political affiliation 12.40 Democrat 74 24 13 63

Republican 11 18 8 74 Independent 6 19 12 70 Don’t/can’t vote 7 19 10 70

Other 2 23 15 63 Accepting state 10.68* Very/somewhat hostile 27 20 10 70

Neither 15 21 15 65 Somewhat/very accepting 58 25 13 62

Long-term relationship 5.26

No 71 21 13 66 Yes 29 26 12 62

UAI (past three months) 48.08*** 0 63 19 12 69

1 13 20 14 66 2� 23 35 13 52

M (SD) M (SD) M (SD) M (SD)

Responsibility b

16.96 c ***

1�SA to 7�SD 1.81 (1.27) 2.31 (1.50) 1.90 (1.19) 1.61 (1.14)

a Three participants refused to answer the question.

b Defined as: ‘‘I feel responsible for protecting my online sexual partners from HIV or other sexually transmitted diseases’’ (Likert scale from

1�Strongly agree to 7�Strongly disagree). c One-way ANOVA.

*pB0.05; **pB0.01; ***pB0.001.

AIDS Care 1223

accepting or gay hostile they believe people are in their state (Likert scale from 1�Very Hostile to 5�Very Accepting).

Participants reported separately the number of sexual partners they met online, in a bar, and at any other venue with whom they engaged in unprotected anal intercourse (UAI) in the past three months, which then was used to calculate the total number of UAI partners. In addition, men were asked if they were in a long-term relationship and, for those men who were, whether they had engaged in UAI in the past three months with that partner. Finally, men were asked to state the degree to which they agreed with the following statement, ‘‘I feel responsible for protecting my online sexual partners from HIV or other sexually transmitted diseases (STDs)’’ (Likert scale from 1� Strongly Agree to 7�Strongly Disagree).

Analyses

Statistical analyses were performed using STATA 9.2. A variable was created reflecting whether participants resided in a state with HIV-specific laws (or laws that increase penalty based on HIV status) or no HIV- specific law from on an existing database (American Civil Liberties Union, 2008). Demographic, psycho- social, and behavioral group differences were exam- ined with chi-square and Fisher’s exact tests. Factors significantly associated with the main outcome in the bivariate analyses were entered into a multivariate ordinal logistic regression to examine which factors were significantly associated with believing it should be illegal for an HIV-positive person who knows his or her status to have unprotected sex without telling the other person of their HIV-status. The proportional odds assumption was met for all predictor variables. Statistical significance was set a priori at pB0.05.

Results

Sample characteristics

Sample characteristics of respondents are shown in Table 1. Sixty-five percent of participants were be- tween the ages of 21 and 40, 76% identified as white, and 52% obtained a college degree. While 77% (n� 1319) of participants reported that their most recent HIV test was HIV-negative, 14% (n�241) reported being HIV-positive, and 9% (n�149) had never been tested. Of note, 34% of MSM between the ages of 18 and 21 had never been tested, compared to between 6 and 8% of men in the other age categories (not shown, x2[3, N�1707]�214.66, pB0.001). A minority of participants (29%) was in a long-term relationship and most participants (63%) reported no acts of UAI

in the past three months with men they met online, in a bar, or at other venues in the past three months.

Attitudes toward unprotected sex by HIV-positive individuals without disclosure

Sixty-five percent of respondents believed that it should it be illegal for an HIV-positive person who knows his or her status to have unprotected sex without telling the other person of their HIV-status, 23% believed that it should not be illegal, and 12% did not know. Believing that it should be illegal for an HIV-positive person who knows his or her status to have unprotected sex without telling the other person of their HIV-status was associated with younger age, HIV-negative or unknown status, less education, non-gay sexual identification, being less comfortable with their sexual orientation, residing in a state in which they perceived residents were somewhat or very hostile, engaging in two or more acts of UAI in the past three months, and feeling more responsible for protecting online sexual partners from HIV and other STDs (see Table 1).

State law, attitude, and sexual risk behavior

Table 2 shows the frequency and percentage of the overall sample and of HIV-positive MSM who endorsed the main outcome variable, UAI partners in the past three months, and UAI with a long-term partner by whether state-level criminal statutes on HIV transmission existed or not. For the overall sample and HIV-positive MSM, attitudes did not vary according to the existence of criminal statutes on HIV transmission. Likewise, the percentage of parti- cipants reporting no, one, or two or more UAI partners or UAI with a long-term partner in the past three months did not differ by state law.

Multivariate analysis of predictors of believing that unprotected sex by HIV-positive individuals without disclosure should be illegal

Results of the multivariate analysis are shown in Table 3. Participants who were HIV-positive (versus HIV-negative/unknown; OR�0.33) and held a col- lege or graduate degree (versus less education; ORs� 0.42�0.64) were less likely to believe that it should be illegal for an HIV-positive person who knows his or her status to have unprotected sex without telling the other person of their HIV-status. Conversely, men who had a non-gay sexual orientation were more likely than men with a gay orientation to believe it should be illegal (OR�1.54). Compared to men who perceived people in their state to be somewhat or very hostile toward homosexuality, those who rated their

1224 K.J. Horvath et al.

state residents to be somewhat or very accepting were less likely to believe it should be illegal (OR�0.75). With respect to sexual behavior, the odds of believing it should be illegal was significantly less for men who reported engaging in UAI with two or more sexual partners in the past three months (OR�0.72) com- pared to men who self-reported having no UAI partners. Finally, feeling less responsible for protect- ing online sexual partners from HIV or other STDs was associated with decreased odds for believing that it should be illegal (OR�0.75).

Discussion

Most men in this study believed it should be illegal for an HIV-positive person who knows his or her status to have unprotected sex without disclosing it to their sex partners. Believing that it should be illegal was associated with HIV-negative or unknown status, less education, having a non-gay sexual orientation, living in a state that they perceive as hostile toward GLBT persons, reporting fewer UAI partners in the past 3 months, and feel greater responsibility toward protect- ing their online partners from HIV and other STDs. Similar to prior studies (Burris et al., 2007), residing in a state with existing statutes on HIV transmission was not associated with differences in attitudes about the main outcome variable or with decreased sexual risk behaviors in this sample of MSM.

Attitudes varied markedly by HIV status. Although nearly half of MSM living with HIV believed it should not be illegal, most HIV-negative partici- pants and those who had never been tested for HIV were in support. Prior studies show that HIV-negative individuals living in the UK overall were critical of laws that criminalize the transmission of HIV (Dodds & Keogh, 2006). These differences most likely reflect a shift in orientation toward criminal statutes on HIV transmission following seroconversion. Specifically, those who know or believe they are HIV-negative are primarily concerned with protecting themselves from HIV and support the implementation of laws that would appear to reduce their risk of encountering an HIV-positive sexual partner who fails to explicitly disclose his status. Following seroconversion, HIV- positive individuals are likely to fear the potential for such laws to be used to prosecute them for cases that involve their HIV status.

Although age was insignificant in the multivariate model, the finding that fewer older MSM believed that it should be illegal for someone who is HIV-positive to have unprotected sex without disclosure than younger MSM may be, in part, attributed to the high propor- tion (34%) of 18�20 year old MSM who had never been tested for HIV. As noted by others (Dodds et al.,

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AIDS Care 1225

2009; Galletly & Pinkerton, 2006), MSM who have not

been tested for HIV may adopt a HIV disclosure-based

risk reduction strategy (i.e., one that relies on the

disclosure by the HIV-positive partner) that gains

credibility by HIV transmission laws. Sexual ex-

changes are complex and often rely on non-verbal

cues to inform safer sex practices (Adam, Husbands,

Murray, & Maxwell, 2008; Horvath, Nygaard, &

Rosser, in press; Horvath, Oakes, & Rosser, 2008).

Evidence suggests an increasing shift toward non-

disclosure in the MSM community (Sheon & Crosby,

2004) and, therefore, relying on a disclosure-based risk

reduction strategy appears inherently precarious. The recent sexual risk behavior of MSM in this

study was similar to that of other online studies using

similar methodology. Thirty-seven percent of MSM in

the current study reported one or more UAI partners

in the past three months, compared to 31% of MSM

in a prior study (Rosser, Oakes, et al., 2009). Men who

had more UAI partners and endorsed lower responsi-

bility to protect their online sexual partners from HIV

and other STDs were less likely to believe that it should

be illegal for someone who has HIV to have unpro-

tected sex without disclosure. Prior studies show that

greater personal beliefs in responsibility for protecting

partners from HIV and other infections is associated

with decreased transmission risk (O’Leary & Wolitski,

2009). However, as noted above, no significant asso-

ciation was found between the existence of state

statutes on HIV transmission and UAI partnerships

among the total sample or specifically among HIV-

positive MSM. Overall, these results suggest that

state laws on HIV transmission are not a deterrent to

sexual risk taking among MSM, and that prevention

Table 3. Multivariate analysis for believing that it should be illegal for HIV-positive person to have unprotected sex without

disclosure. a

Odds ratio Lower Limit Upper Limit p-value

Age 18�20 Ref. 21�30 0.80 0.48 1.32 0.379 31�40 0.62 0.37 1.05 0.074 41�70 0.61 0.36 1.03 0.065

HIV-status Negative Ref. Positive 0.33 0.24 0.44 0.000

Never tested 1.72 0.48 1.08 0.112 Education

H.S. or less Ref. Technical/some college 0.64 0.44 0.95 0.028

College degree 0.53 0.35 0.78 0.002 Grad degree 0.42 0.27 0.64 0.000

Sexual identity

Gay Ref. Other 1.54 1.08 2.20 0.018

Comfort with sexual orientation

Very Ref. Comfortable 1.11 0.86 1.42 0.419 Less than comfortable 1.21 0.87 1.70 0.254

Accepting state

Very/somewhat hostile Ref. Neither 0.84 0.60 1.18 0.316 Somewhat/very accepting 0.75 0.59 0.96 0.023

UAI (past three months) 0 Ref. 1 1.00 0.73 1.37 0.997

2� 0.72 0.56 0.93 0.013 Responsibility

b 0.75 0.69 0.81 0.000

a Defined as ‘‘Should it be illegal for an HIV-positive person who knows his or her status to have unprotected anal sex without telling the other

person of their HIV-status?’’ (Response options: 0�No, 1�Don’t know, 2�Yes). b Defined as: ‘‘I feel responsible for protecting my online sexual partners from HIV or other sexually transmitted diseases’’ (Likert scale from

1�Strongly agree to 7�Strongly disagree).

1226 K.J. Horvath et al.

resources may be more effective if allocated toward addressing empirically supported individual risk fac- tors (e.g., increasing personal responsibility beliefs).

Study limitations

The results of this study are limited in several ways. First, the cross-sectional design prohibits causal inferences about the impact of independent variables on outcomes. In addition, we cannot determine whether the non-significant association between state law and UAI partnerships is attributable to a lack of awareness of the existence of such laws or whether such information is simply not used in MSM’s sexual decision-making. Participant knowledge of the exis- tence of HIV-specific state laws should be considered in future research. Second, while a strength of the study was that participants were geographically diverse, the findings may not generalize to non-Internet-using MSM. Moreover, participants were not randomly selected and, therefore, the extent to which they represent MSM is unknown. Finally, although pre- cautions were taken to detect and eliminate deception, the study relied on self-reported data that may be prone to error.

Implications

Law has been used to address a number of public health domains (Moulton et al., 2008), including HIV (Gable, Gostin, & Hodge, 2009). However, a number of experts have rejected the establishment of HIV- specific criminal statutes as means to deter HIV transmission (Burris & Cameron, 2008; Burris, Cameron, & Clayton, 2008; Galletly & Pinkerton, 2006; Lowbury & Kinghorn, 2006; Weait, 2007). The results of this study support these claims, as we found no evidence that states with and without such laws differed in HIV risk behavior reported by HIV-positive MSM or MSM in general. Even if the existence of such laws deters a small number of HIV-positive persons from engaging in high risk behavior, there is rising concern about the proper enforcement of such laws. A review of cases involving convictions or prosecutions of HIV-positive persons in England from 2005 to 2008 revealed improper enforcement by police of HIV- specific laws as a result of misunderstandings of such laws, a poor understanding of the complexities of HIV transmission, and what actually constitutes scientific evidence in such cases (Terrence-Higgins Trust, 2009). In conclusion, the results of this and other (Burris et al., 2007) studies fail to provide evidence that criminalization is an effective deterrent to engaging in high risk sexual behavior, while more investigation into the full range of possible effects of such laws is needed.

Acknowledgements

This study was undertaken as part of the ‘‘Structural

Interventions to Lower Alcohol-related STI/HIV,’’ grant

number R01AA01627001, funded by the US National

Institute on Alcohol Abuse and Alcoholism (NIAAA).

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