Gary Wayne Carriker was convicted of felony reckless conduct
for not disclosing he is HIV positive before engaging in private, consensual
sex with another man.
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Friday, November 18, 2005
26-YEAR-OLD gay man is sitting in a Fayette County, Ga., jail for having sex
with another man.
Gary Wayne Carricker, a fourth-year medical student at Emory University in
Atlanta, was convicted and sentenced to 10 years in prison for felony reckless
conduct: gay sex that was private, consensual and of a type routinely engaged
in by literally tens of thousands of men who read this publication.
About half the states have criminal statutes like the Georgia law under which
Carricker was charged and convicted — a law based on assumptions about
gay sex that are just as steeped in fear and prejudice as the sodomy laws struck
down by the U.S. Supreme Court only two years ago.
The difference? The fear and prejudice in Carricker’s case isn’t
just about gay sex generally, but also the AIDS virus in particular.
His crime? He had a four-month relationship with John Withrow, 25, during
which the two men engaged in private, consensual oral and anal sex. Carricker
is HIV-positive, and did not disclose that fact to Withrow, who is HIV-negative.
That is all that prosecutors in semi-rural Fayette County needed to go after
Carricker, and go after him they did. Georgia law makes it a criminal felony
to “expose” someone to the AIDS virus if you know that you’re
HIV positive and don’t tell the other person.
IT DOESN’T MATTER under Georgia law whether the sex is protected or unprotected,
just as it doesn’t matter whether the sex is anal or oral, much less whether
the poz participant was insertive or receptive.
After all, a significant number of Georgia legislators still see AIDS as God’s
vengeance for the sin of homosexuality anyway, so for them there’s no
need to distinguish between types of sexual conduct and the actual risk of HIV
transmission.
That leaves the decision of whether to bring charges to the discretion of
prosecutors, and you can imagine the level of sensitivity on this issue in small-town
Georgia. Asked by Southern Voice, a publication affiliated with the Blade, whether
Carriker was the insertive or receptive partner in the sex with Withrow, the
Fayette prosecutor was predictably grossed out.
“I didn’t get into those kinds of details,” he sniffed,
after having obtained his conviction and lengthy sentence.
Well, if the “ick factor” is that bad for these prosecutors, who
deal with all levels of gore and violence in other cases, they had no business
bringing charges in the first place.
IN THE REAL world of icky gay sex, the risk of HIV transmission varies dramatically
based upon the type of sex, the role of the participants and, of course, whether
a condom was used.
Each time two men engage in oral sex, the chance of contracting HIV is about
1 in 10,000, and that 0.01-percent risk arises under unusual circumstances,
like bleeding gums on the receptive partner and/or recent HIV exposure to the
insertive partner, when the amount of virus in his semen is higher.
Regardless, the general risk is so low that the law should always exclude
oral sex as a basis for criminal prosecution.
That means prosecutors in urban, gay-friendly Fulton County (which includes
Atlanta) should immediately drop a second set of charges Carricker faces there
for simply engaging in oral sex without disclosing his status. (Fulton prosecutors
were apparently also too squeamish to ask if Carricker was the insertive or
passive participant in the grand total of two occasions on which those charges
are based.)
In anal sex, the danger of contracting the AIDS virus is similarly negligible
for an HIV-negative insertive partner (or “top”) whether or not
condoms are used. And if they are, the HIV-negative receptive partner (the “bottom”)
faces negligible risk as well.
Fulton prosecutors have also brought charges against Carricker for having
oral and anal sex with a second Atlanta man and they say Carricker was the top;
but it’s unclear whether the sex was protected or not. That fact is crucial
in determining whether to go forward with the prosecution.
THE POINT IS that, under the law in Georgia and most other states, none of
these niceties matter, unless the rare informed and enlightened prosecutor cares
to look into them.
With so much ignorance and fear still surrounding HIV and AIDS, and so much
bigotry still directed at homosexuality, the law that put Gary Wayne Carricker
behind bars for up to 10 years ought to be repealed, and our gay rights groups
should demand it.
We do know that in the case of Carricker and ex-boyfriend Withrow, the sex
was oral and anal, and it was unprotected. Should Carricker, the med school
student, have disclosed his HIV status to Withrow? Absolutely.
As an ethical and moral matter, someone with more information about the risk
of exposure should always disclose it to the person with less information. That’s
especially the case if Carricker agreed to have unprotected anal sex, though
if he was the bottom, the risk to Withrow was still negligible.
The U.S. Supreme Court pointed out in its sodomy decision two years ago that
criminal laws shouldn’t be used to legislate morality, especially in cases
like these where so much fear and ignorance clouds some very important variables.
For all we know, Carricker was being successfully treated with medications that
left his viral load undetectable, making the risk of transmission minimal even
if he was a top during unprotected anal sex.
Criminal laws exist to protect people from actual harms, not imagined ones,
and ought to be limited to those specific situations. I’ve written before
in support of laws prohibiting someone who knows he is HIV positive from having
unprotected, insertive anal sex with a man or woman without first disclosing
his status.
That’s the sensible line drawn by the law in California, and it ought
to be adopted in Washington, D.C., where prosecutors have taken the unusual
and commendatory step of asking the gay community for input on what conduct
should be made illegal. It is, after all, we who are at risk when gay sex is
at issue.
And no criminal law, no matter how draconian, absolves HIV-negative women
and men — including John Withrow and Carricker’s other sex partners,
and including me — from taking responsibility for own health and insisting
that a condom is used whenever we choose to be the bottom in anal or vaginal
sex.
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