Felony Charges for Knowingly Giving Someone HIV-

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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby D-LOGAN » Tue Oct 10, 2017 10:12 pm

Marcuse wrote:
YOU DON'T GET TO DECIDE WHAT RISKS IT’S OK FOR OTHER PEOPLE TO FACE WITHOUT THEIR KNOWLEDGE!


UNLESS THEY'RE CHILDREN OR OTHERWISE NOT COMPETENT.


Pfffft, kids these days, what with the internet and the fluoride in the water, are more than capable of deciding what levels of danger they can expose themselves to.

Any attempts at curtailing the choices made by anyone over the age of ... I'd saaaaaaaaaaaaaaay seven months old is just coddling. Nope, after seven months you open the door, you shove them out, you wish them well and you leave them to it. They'll find their way in the world, and one day they'll thank you.

Trust me.

(Maaaaaaaaaaaaaaaaybe give them a switchblade or something before you shut the door, but that's it!)
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby Crimson847 » Tue Oct 10, 2017 10:18 pm

aviel wrote:I think a relevant question then would be whether convictions under some of those charges could be sustained notwithstanding this law. In other words, does this law act as its own offense when the illness is non-lethal, but as more of an enhancement to traditional violent crimes when the illness is life-threatening?


Seems like an important question.

EDIT: I suspect that charging the offender with manslaughter if the victim dies or aggravated assault if they're severely affected would be difficult, given that charges for this crime would presumably be leveled soon after the act was discovered, whereas the victim's death or severe impairment would probably occur long after that trial ended. Would that qualify as double jeopardy?
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby Learned Nand » Tue Oct 10, 2017 10:30 pm

I don't think it would be double jeopardy. To determine whether separate charges constitute double jeopardy, the question isn't whether the charges arouse from the same set of facts, but whether they require proving the same set of facts. As the court put it in Blockburger v. United States, 284 U.S. 299, at 304 (1932):

Justice Sutherland wrote:The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.


In this case, the infliction of disease charge would require proving that a disease was inflicted, which is not an element necessary for a manslaughter charge. The manslaughter charge would require proving that the victim died, which isn't an element of the infliction of disease charge. So I think a person could be charged with both as the relevant facts cropped up.

EDIT: Science!

Someone in the discussion I was having about this issue on Facebook linked to a study suggesting that criminal sanctions on deliberate or undisclosed HIV transmission do not appear to affect sexual behavior either way. This both undermines Weiner's argument that increased penalties for deliberate HIV transmission discourage testing, but also undermines arguments that increased penalties are necessary to deter offenders.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby NoodleFox » Wed Oct 11, 2017 4:25 am

I REALLY shouldn't type replies when I don't have enough time...or accidentally submit before I proofread, at least. So yeah, my last reply was shit.

Everyone else has explained it better than I have, but I essentially agree what with everyone said:
Deliberately inflicting harm on another person should be a felony in whatever physical way - this includes infecting a person with a life-threatening illness. To me, I see these infectors the same way I see Typhoid Mary - someone who knowingly placed the public at risk (despite being told not to do something that would result in getting others ill (she was a cook prior to being quarantined, then went back to being a cook after doctors and the NY health commissioner released her after they agreed that she'd change careers)).

Besides, some of those who went and deliberately transmitted HIV to others seemed to have gotten off on infecting people (see OP). And I can certainly see that happening: someone who has the power to utterly destory someone's life without inflicting noticeable injury/death - it makes for a horrid abomination of a human if the person already has some sort of narcissistic/sociopathic tendencies.
It makes you wonder if they'd be on the straight and narrow years later if they never got HIV...

So morally and personally: Sorry you got HIV/AIDS and I'm sorry how the rest of your life is set to be, I really truly, honestly am, but you have a responsibility to the public not to go and spread this disease (Bullshit on the whole "OH MY LOVE LIFE IS RUINED": It's not like you can never bone others ever again, just use protection...Jesus Christ on a bike...nut up and be a fucking adult). You have something dangerous and we need to trust you to act accordingly. If not, not sorry, you're trash and deserve jailtime, fuck off.

Now is this stigma? I guess, but I see it linked to the phrase "With great power comes great responsibility", but more morbid and you could become Venom instead of Spiderman.
And I'm all for any and all platforms that can help reduce stigma, be it education or what have you, but I honestly don't think lessening the crime of intentional spreading of HIV from a felony to a misdemeanor is going to help that.

Hope this is a lot more clear in my reasoning.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby Fun With Mr. Fudge » Thu Oct 12, 2017 7:55 am

aviel wrote:Someone in the discussion I was having about this issue on Facebook linked to a study suggesting that criminal sanctions on deliberate or undisclosed HIV transmission do not appear to affect sexual behavior either way. This both undermines Weiner's argument that increased penalties for deliberate HIV transmission discourage testing, but also undermines arguments that increased penalties are necessary to deter offenders.


But isn't one of the other issues here the need to ensure justice for the aggrieved? I get that such a position lends itself more to a retributivist theory of justice, but I think that it's a valid concern, especially considering the nature of the harm being inflicted.

Moreover, I wonder of the nature of the punishment would make a difference. For example, if deliberate transmission of HIV was classified as a sex crime that required placement on a registry, would that make them more likely to report being HIV positive? I'm not advocating that as a good thing to do (I also get that there are issues with privacy and medical data to consider), but it seems to me that the nature of the punishment for an offense might make a difference if it directly relates to the motivation behind said offense. As in: "these people don't want to be stigmatized. If their punishment involves being publicly stigmatized, maybe they'll not offend."
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby iMURDAu » Thu Oct 12, 2017 2:13 pm

aviel wrote:Someone in the discussion I was having about this issue on Facebook linked to a study suggesting that criminal sanctions on deliberate or undisclosed HIV transmission do not appear to affect sexual behavior either way. This both undermines Weiner's argument that increased penalties for deliberate HIV transmission discourage testing, but also undermines arguments that increased penalties are necessary to deter offenders.


Then we're back to having punishment fit the crime since people aren't being deterred.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby Learned Nand » Thu Oct 12, 2017 6:35 pm

Fun With Mr. Fudge wrote:But isn't one of the other issues here the need to ensure justice for the aggrieved? I get that such a position lends itself more to a retributivist theory of justice, but I think that it's a valid concern, especially considering the nature of the harm being inflicted.

I don't think that retribution is a valid concern. Retribution doesn't make anyone's lives any better, it just makes the offender's life worse. It's reasonable to increase a penalty when it is necessary to incapacitate the convict for longer, when it would help to rehabilitate him, or when it would help to deter the offending behavior.

Given the study to which I linked, the deterrence justification probably isn't relevant here. I am also skeptical that offenders would be substantially more rehabilitated if the offense were a felony, although I haven't seen evidence either way, so it is possible that that could justify an increased penalty. And by putting people with contagious diseases like hepatitis in prison, where such diseases are more likely to spread, the incapacitation interest would require a less severe penalty, as imprisonment (in this context) is basically the opposite of incapacitation.

The problem with a retributive theory of justice is that it isn't anchored in any objective concerns. In the US in particular, retributive theories of justice has allowed sentencing schemes that impose serious costs, both on the offenders and on society as a whole, without actually reducing crime. There are a number of crimes (including the one at issue here) for which no civil or criminal penalty can ever make the victim whole. That's a void that can't be filled with retribution.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby DamianaRaven » Thu Oct 12, 2017 8:51 pm

I think "retribution" and "deterrence" go hand-in-hand, though. Hasn't it been well-established that people will do some straight-up horrible shit if they're confident they can get away with it... or believe the penalty to be worth the satisfaction of the crime? The main point of retributive justice is to make people hesitate before they hurt others. I'm sure it's not perfect, but I can't believe that the thought of going to prison has had ZERO effect on every person who's ever considered victimizing another. I'm sure the sentiment of "it's not worth the punishment" has saved a LOT of people from a LOT of crime!
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby iMURDAu » Thu Oct 12, 2017 9:15 pm

What about keeping society safe from criminals? Slap on the wrist, back out spreading HIV. Locked up, may spread it in prison but the criminal is still being kept from regular folks.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby Marcuse » Thu Oct 12, 2017 9:19 pm

The main point of retributive justice is to make people hesitate before they hurt others.


Nope, that's deterrence. As in, it deters people before they commit an offence with the punishment.

Retribution is recognising that in order to be just, a crime must be followed with a punishment in order to rebalance the advantage the individual gained from committing a crime. It's not so much that punishment is inflicted in order to harm the other person because it's satisfying, more than it's suitable to impose a penalty on a person who has sought to gain illegal advantage over others, the punishment is supposed to be a logic progression from the crime, not the thing that stops it in the first place.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby DamianaRaven » Thu Oct 12, 2017 9:57 pm

You don't think the fear of retribution serves as a deterrent? If not, then what measures actually DO deter criminal behavior?
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby Fun With Mr. Fudge » Thu Oct 12, 2017 10:08 pm

aviel wrote:Given the study to which I linked, the deterrence justification probably isn't relevant here. I am also skeptical that offenders would be substantially more rehabilitated if the offense were a felony, although I haven't seen evidence either way, so it is possible that that could justify an increased penalty. And by putting people with contagious diseases like hepatitis in prison, where such diseases are more likely to spread, the incapacitation interest would require a less severe penalty, as imprisonment (in this context) is basically the opposite of incapacitation.


The study you linked earlier didn't really address my point, which was that "punishment" has multiple dimensions to it. Whether it's "harsh/light/in between" is one of them, but the there is also the issue of the content of said punishment. That is why I mentioned a registry, partly as a thought experiment but also to point out that jail time by itself might not be what deters this particular kind of criminal. That, of course, is an empirical question. The point you raise about transmission of disease in prison is fair, but only indirectly addresses what I said from what I can tell.

The problem with a retributive theory of justice is that it isn't anchored in any objective concerns. In the US in particular, retributive theories of justice has allowed sentencing schemes that impose serious costs, both on the offenders and on society as a whole, without actually reducing crime. There are a number of crimes (including the one at issue here) for which no civil or criminal penalty can ever make the victim whole. That's a void that can't be filled with retribution.


But I never suggested retribution could make a victim "whole." I doubt any penalty could do that, just as I doubt any criminal law can deter all instances of the offense it addresses/prevent repeat-offenses altogether. That said, having a retributive component to punishment also sends a message to society and to victims about the nature of certain actions, namely that they're wrong (and wrong to a particular degree) as opposed to simply undesirable. I'm not so sure that there isn't a societal benefit - at least psychologically - to including that kind of consideration in sentencing. Rightly or wrongly, many people at least seem to care about condemning severe actions as severe, especially when they are or could be harmed by said actions.

I would be curious about whether retributive justice via the court system reduces vigilantism. But that of course is a different matter (though arguably related related insofar as a person whose life is ruined might go to extremes to ensure they get "adequate justice").
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby D-LOGAN » Thu Oct 12, 2017 10:40 pm

Well personally I'm of the OPINION, (not a statement of fact that I'll be backing up with evidence mind you, I've zero interest in taking part in those such shenanigans here) that the way a justice system in a society should work in response to an individual breaking a law is a three tiered system, which in order of importance are:

1) Punishment- Prison time, fines, barring orders, community service etc.

2) Protecting the public from said offender- although that may not be necessary in the cases of some crimes and infractions, and since in any society I'd agree with, stuff like torture, mutilation, humiliation etc. would be out of the question, but since punishment may be segragating the offender from the public for whatever the prescribed amount of time for said infringement, it would cover the same purpose as this. So two birds with one stone in this case.

3) OFFERING the chance at rehabilitation- key word there being offering. You can't force someone to rehabilitate, you can only give them the chance, which you should. But if they don't want it, so be it. If someone robs a bank and then at the end of their sentence goes "just so youse all know, I'm not the least bit sorry about what I did, I enjoyed it, if I lived it over again I'd have done the same thing. And to be 100% clear, I'm not the least bit rehabilitated and I'm worse now than when I went in."
Well then the only thing to say then is "okey doke" and let them go, they've served their time after all. Assuming they're saying this when they're literally at the end of their sentence and not during their parole hearing that is.
*And obviously there'd be certain crimes that'd be exceptions to this of course, but I'm just generalizing for effect, you get it*

As far as I'm concerned, reducing crime itself in society is a different matter. To be handled through things like social and education programmes and reach-outs and charities and whatnot. But at the end of the day, IMO a victim and society should have a right to expect some form of punishment fit for the severity of the crime in question, or fuck that society frankly. I'll build a new one.

And if someone deliberately and without my consent (not that I'd give anyone consent of course) infected me with HIV or any such serious illness, or assaulted me in any such serious fashion, I'd want the fucker to get more than a misdemeanor quite frankly. I'm a little touchy that way.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby Marcuse » Thu Oct 12, 2017 10:44 pm

DamianaRaven wrote:You don't think the fear of retribution serves as a deterrent? If not, then what measures actually DO deter criminal behavior?


It may have that effect, but the principle of deterrence and the principle of desert are conceptually distinct, even if one might have or be considered to have the effect of the other. To deter is to give someone pause before a crime by the severity of the punishment, to gain retribution is to impose a punishment because the person's behaviour has caused them to deserve it. A retributist punishment may have a deterrent effect, but it wouldn't be formulated in order to do so (ie. It shouldn't be more severe than the crime merits in order to deter).

Also, generally from what I've read and experienced, little does actually deter. Often the level of punishment required to adequately deter someone from committing an offence is so severe that it would in itself constitute a worse crime than the one it intended to prevent. Often people commit crimes without reference to rational cost/benefit decision making, or do so out of necessity, and a deterrent often doesn't address these problems and can't outweigh the reasoning it brings with it. You're not going to stop the starving person from stealing food by amputating both his arms, for example, you'll just end up presiding over a government that cuts off lots of arms.
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Re: Felony Charges for Knowingly Giving Someone HIV-

Postby LegionofShrooms » Thu Oct 12, 2017 11:33 pm

D-LOGAN wrote:My whole thing basically comes down to, you do your thing as long as you’re not harming anyone else (well obviously there’s a lot more to it than that but just simplifying for effect here) and knowingly or deliberately exposing someone to such an illness without them being aware definitely crosses that line. Like if someone knew they were HIV and didn’t inform a sexual partner beforehand or as in the cases Noodle’ mentioned deliberately infected you, in some cases ripping condoms and whatnot just to ensure infection, or donate blood they knew was infected, well I believe the victims deserve to have those who abused them in such a fashion to be charged with more than a misdemeanour.


The author of the quote is unestablished, but I think it's rather fitting here:

"The right to swing my fists ends where the other man's nose begins."


Of course, here we're replacing fists with genitals and noses with other sets of genitals (or maybe not-I don't judge your fetishes as long as you're not hurting anybody), but whatever.

What perplexes me is how this is even a debate that this senator would waste time pursuing. Even if you reduce the penalties for this sexually specific offense, aren't these actions still covered under other laws?

Criminal reckless endagerment where I currently live includes definitions such as: "'recklessly engages in conduct which creates a grave risk of death to another person' and 'depraved indifference to human life'". Now, correct me if I'm wrong-but intentionally neglecting to mention risks while being knowingly infected and partaking in unprotected sexual contact seems to fit the bill to me. I feel like a savvy lawyer could set a precedent by not allowing this loophole to allow deliberate endangerment for selfish motives (I.e., personal sexual gratification) to go at a lesser crime.

I'd imagine someone that can prove willful, malicious intent rather than mere garden mill neglect and selfishness might even be able to secure a criminally negligent manslaughter charge.
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