UNIT 5: What Are Your Rights?

Using the resources provided by your teacher, determine if the following court scenario follows laws that protect the human rights of people living with HIV.

Case #1 – Is Transmitting HIV Illegal?

Plaintiff (the accuser) sued defendant (the accused) for negligent transmission of HIV. Both plaintiff and defendant were gay men in their late 20s. They had sexual relations with one another several times during the course of a month-long relationship. Plaintiff was aware prior to his first sexual contact with defendant, that defendant had had several previous gay partners and that defendant frequently used intravenous drugs. Despite this knowledge, plaintiff never requested that defendant wear a condom during sex, and never asked defendant whether he had used a condom with previous sexual partners. Prior to and throughout his relationship with plaintiff, defendant was not tested for HIV infection. At no time during this period did defendant display any unusual physical symptoms, visit a doctor, or discuss his sexual history or behavior with plaintiff. In dismissing the case, the Court stated that defendant had no duty to warn plaintiff about possible HIV infection or to refrain from sexual contact with plaintiff, since at the time of their relationship, defendant had no reason to know that he was infected with the HIV virus. The Court went on to explain that, even if a duty did exist, plaintiff had assumed the risk of possible HIV infection since he was knowledgeable about the consequences of unprotected sex, knew about the defendant’s high-risk activities, and still voluntarily chose to engage in unprotected sex with the defendant.

• Do existing HIV laws and policies in your state support the court’s decision to protect the defendant? Which ones?

• What laws support suing the defendant? Are they examples of HIV criminalization? (You may need to reference additional resources to find this information.)

UNIT 5: What Are Your Rights?

Using the resources provided by your teacher, determine if the following court scenario follows laws that protect the human rights of people living with HIV.

Case #2 – Is It Illegal to Refuse to Treat HIV-Positive People?

Respondent Sidney Abbott was infected with HIV, which was in the asymptomatic phase. At that time, she visited the office of Randon Bragdon, a dentist, for a routine examination; Abbott disclosed her infection to Bragdon. During the examination, Bragdon discovered a cavity and informed Abbott of his policy against filling cavities of HIV-infected patients in his office. Bragdon offered to perform the work at a hospital at no extra charge, though Abbott would have had to pay for use of the hospital’s facilities. Abbott declined and filed a lawsuit against Bragdon in the United States District Court for the District of Maine, alleging, among other matters, that Bragdon violated the Americans with Disabilities Act (ADA) of 1990, which prohibited discrimination against any individual on the basis of disability in the enjoyment of the services of any place of public accommodation. This case was eventually brought to the Supreme Court, where it was ruled that Abbott qualified for protection under the ADA as HIV affects a major life activity – reproduction, and therefore HIV is considered a disability.

Bragdon v. Abbott is a real case from 1998 and the first HIV case addressed by the United States Supreme Court. The decision to cover people living with HIV under the ADA was a huge victory for people living with HIV because it provided a legal base to fight HIV-related discrimination in jobs, housing and health care.

• What existing HIV laws and policies in your state would protect Abbott if this same scenario happened today?

• How would someone in Bragdon’s position be held accountable or punished according to those laws?

• Consider why Bragdon refused to treat Abbott in the first place. How would widespread knowledge of the science behind HIV and how it works prevent further violations of human rights? Can you think of any other global issues where science and social justice go hand in hand?