To Disclose or Not to Disclose
That is the Question

By: Jeff Staton, Staff Attorney HIV AIDS Legal Project

You have recently discovered your HIV positive status, you might feel overwhelmed by your situation.  You need support and comfort from those close to you, but will you get it? Unfortunately, we still live in a society that includes HIV stigma and ignorance.  If you were to say you have cancer, you would receive a rush of support and sympathy from those around you; however, when you say you have discovered you are HIV positive, you are likely to receive a much more varied response including negative reactions and behaviors which leave you in a very lonely dilemma:  Do I tell my best friend or a close member of my family, or even my employer/co-workers?  How will they react?  Am I even required to tell them?  Will I receive comfort or recrimination and rejection? Can I legally require those I tell to keep my information confidential? 

When it comes to your spouse or sexual partners, not disclosing your HIV positive status could lead you to be criminally prosecuted.  The possible penalties are different in each state.  In Kentucky, there is no specific criminal law regarding this issue.  Kentucky has prosecuted individuals for failing to disclose their HIV positive status to sexual partners under the wanton endangerment statute.  In Hancock v. Commonwealth, the Kentucky Court’s allowed prosecution under the wanton endangerment law of an HIV positive man who had a two year sexual relationship with a woman, allegedly without disclosing his HIV positive status.

Other states have varying statutes regarding the issue of disclosure to sexual partners.  Indiana, for example, has a duty to warn statute requiring HIV positive individuals that know their status to disclose to past, present, and future sexual or needle-sharing partners when they have or will engage in activities that have been demonstrated epidemiologically to transmit HIV.  Failure to do so is a Class D felony punishable by up to three years imprisonment and the possibility of a $10,000 fine.

In Iowa, it is a Class B felony, punishable by up to 25 years in prison for a person who knows she/he is HIV positive to engage in intimate contact with another.  Sex offender registration is also required.  Protected sex is no defense.  The only defense is that the person “exposed” to HIV knew that the infected person had a positive status at the time of exposure, knew that the action of exposure could result in transmission, and consented to the action of exposure with that knowledge.  For more information on other states, please check out this link: http://www.aclu.org/lgbt-rights_hiv-aids/state-criminal-statutes-hiv-transmission.
 
Telling a spouse or sexual partner your HIV positive status might be taken completely out of your hands.  Both HIPAA(Health Insurance Portability Accountability Act of 1996), a federal law that  establishes a federal floor of safeguards to protect the privacy of medical records and other personal health information (PHI), and Kentucky law (KRS 311.282) allow a doctor to disclose to a spouse.  HIPAA allows physicians and the state department of health staff to notify named partners of HIV infected individuals and Kentucky law shields a doctor from criminal or civil liability for disclosing a patient’s HIV positive status to a spouse or sexual partner with whom the patient has cohabitated for more than one (1) year.

Besides the criminal ramifications of non-disclosure to a spouse or sexual partner, you need to know that there is generally no duty to disclose your HIV status to family members, employers, friends, co-workers or others you meet.  Telling those close to you is a personal decision and one you should definitely give serious thought.  The answer for each person will be different.  My advice typically to someone with HIV is to avoid divulging their status except in situations where it is required.  I advocate this response because once you divulge your status to a family member or a friend they have no obligation legally to maintain your confidence.  The person you tell today may betray that confidence later and tell other family members, friends, neighbors and your employer.  Legally, you have little recourse if you tell a friend or family member and they do decide to tell others.  For example, suing under a claim of defamation would not apply in these situations because truth is a defense to defamation.  In other words, if you told your sibling your HIV positive status and they told your co-workers at your job, then you can’t sue your sibling for defamation because what they told your co-workers about your status is true.


Generally, your employer is also under no obligation to keep your status confidential if you tell your employer your status.  In this situation, you run the risk that the employer will divulge your HIV positive status to your co-workers and others whom you do not want to know.  Employers do have legal requirements including not discriminating against someone with HIV or providing reasonable work accommodations for someone with HIV; however, these do not necessarily mean the employer must keep your disclosure confidential in all cases.  Many HIV positive people succumb to the notion or are told by their employers that they are required to tell their employer about their status particularly if they work in a field like food service; however, this is false.  I am unaware of any work field where HIV disclosure would be a requirement to obtain or maintain employment.

In the end, a decision to disclose your positive HIV status has far reaching consequences both positive and negative.  Armed with the knowledge above, each person faced with a disclosure decision can make a better determination that fits their situation and needs.
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