This post was submitted by Clarence

Typhoid Mary, as she would become known to history, was a 20th century New York cook named Mary Mallon, who was diagnosed as a carrier of the bacteria Salmonella typhi, the bacteria which causes typhoid fever, a highly contagious and possibly fatal fever. Mallon worked in various private homes and later a hospital as a cook and was eventually tracked down by health officials as the carrier responsible for infecting nearly fifty people with S. typhi unknowingly, which led to the death of at least three people. Mallon, who was unlike many of the other carriers because she did not show any of the symptoms of typhoid fever, was ultimately quarantined on North Brother Island against her will where she spent the rest of her life denying that she was the carrier and proclaiming her innocence. Towards the end of her life, however, the public was largely against her, seeing her as a public threat rather than the victim she claimed to be.

What happened to Mallon was tragic. She was never accused of maliciously trying to spread S. typhi to her employers. Mallon was merely trying to find work to get by, like everyone else in New York then and now. Her case and the legacy of Typhoid Mary has since served as a constant reminder of the difficulty in trying to serve the public good and maintain public health simultaneously as we try to ensure liberty and freedom for individual Americans. The case largely tested for the first time from a health perspective what Americans would do when they had to choose whether or not to give up a little freedom to guarantee better security.

For students of history and health the similarities between the case of Mary Mallon and attempts by state, federal, and health officials to contain the spread of the humane immunodeficiency virus, or HIV, ever since the virus’s infection rates exploded in the 1980s, is inescapable. Dr. Judith Walzer Leavitt addressed these similarities and raised her own concerns about the actions being adopted by states to combat the spread of HIV in her book about Mary Mallon, Typhoid Mary: Captive to the Public’s Health, which was published in 1996. Leavitt, who sympathized with Mallon and felt health officials and the public at large went too in Mallon’s case, was primarily worried about the extent state or federal legislatures and health officials that craft policies were willing to go to ensure public health at the expense of individual liberty, particularly around life-threatening illnesses that are heavily stigmatized in the public’s psyche, such as HIV/AIDS.

In the wake of the HIV/AIDS epidemic many state legislatures rushed to pass legislation that would make it a felony or misdemeanor to transmit HIV to another individual, whether intentional or not. At the federal level the government passed a policy that banned individuals from other countries who were HIV-positive from immigrating to the United States (this policy was only recently repealed in January 2010); and another federal agency, the Food and Drug Administration, which oversees the nation’s blood supply, has maintained its policy that prohibits men who have had sex with men since 1987 from donating blood.

Many of these policies have been resoundingly criticized by health researchers across the country, as well as by HIV advocates, gay-rights advocates, and other prominent individuals across the country (Andrew Sullivan likely being one of the most famous). Nevertheless, many of these policies have remained in place largely because of the fear of the possibly putting the public at risk, which necessitates state legislatures and federal agencies do something.

In recent years HIV transmission criminal cases, which are generally few and far between, have come under increasing scrutiny by HIV advocates, who suggest the various state laws that criminalize transmission only reinforce the stigma surrounding HIV/AIDS and do little to actual curb transmission rates. Ragan Hoffmann, editor-in-chief of POZ magazine, a monthly magazine addresses the needs and concerns of the positive community, elaborated on this central point in an article she wrote for The Daily Beast in 2009.

“When HIV-positive people are criminalized, people in general become less likely to educate themselves about the disease, to discuss HIV with their partners, and to get tested for the virus.” Hoffmann writes. “According to U.S. law, if you don’t know you have HIV, you are less culpable should you pass it along to a partner. This provides a disincentive for people to know their HIV status. And, if people are unaware of their HIV status, they are not seeking care for the disease. When people are aware that they have HIV and seek treatment, their viral load can be reduced, rendering them less infectious. Therefore, criminalization of HIV actually leads to the spread of HIV.”

(It should be noted based my research into this topic I have been unable to find any federal statute, i.e. “U.S. law” that specifically regulates the requirements of positive partners during sex, merely various state statues that vary in requirements and scope—more on that below.)

The catalyst for Hoffmann’s piece was a recently closed case in Canada involving a Mr. Johnson Aziga, who had just recently been convicted on two counts of attempted murder for transmitting the virus to two women whom he had sex with. Hoffmann noted that it was a unique case in that it was one of the few times, in Western countries at least, that transmitting HIV to another person was persecuted as an attempted-murder. Similar language that surrounds these type of cases, such as classifying the penis of a positive partner during the intercourse where the virus was transmitted as a “deadly weapon”, are examples Hoffmann would argue that reinforces the stigma about HIV/AIDS.

Hoffmann, who became HIV-positive after she had unprotected sex with a positive partner after inquiring about his status and, as she says, “took a calculated risk”, also argues that the criminal justice system puts too much of the blame and responsibility on the positive partner(s), rather than having both partners equally responsible in the event if there is transmission. “The finger of justice seems to inevitably wag at the person living with HIV, but given that these cases in question involved consensual sex, it makes me wonder why we are not discussing the culpability of both parties.” Hoffmann writes. “Why are we not asking the person who was exposed, and who perhaps contracted HIV, whether they felt any responsibility for the risk they took when having unprotected sex?”

The question of personal responsibility and culpability on the part of the partner who was exposed to HIV during consensual sex is an important one that Hoffmann raises. At this point, through the various private and government sponsored campaigns to educate individuals about the risks involved in having unprotected sex, we have all heard the message: wear a condom. Other campaigns have sought to reinforce the message that as individuals when we engage in sexual intercourse we should always presume that our partner(s) has something, in an effort to cement the idea that we should always use protection unless we are assured that our partner(s) are not positive or stricken with one of the other known STIs. Consequently, there is an air of responsibility and culpability that exists within our society. However, the primary objective before state legislatures and health officials is not to prosecute who has been less responsible but to limit the rates of infection, to this end irresponsibility takes a backseat to the main objective.

Hofmann’s argument that current state laws that prosecute HIV transmission create a disincentive to know your status is based on the fact that state statutes that criminalize transmission are written in a way that a positive person will only be found responsible if during the time of intercourse they were knowingly aware of their HIV status. The reason these laws are written this way likely is an acknowledgment on the part of state legislatures and health officials that an individual can live their life for years without any indication that they may in fact might have contracted HIV, and would there seem ‘cruel and unusual’ to punish an individual for doing something they have no conceivable way of knowing they had done. Nevertheless as it relates to the way in which the law is written, going back to Hoffmann’s own emphasis on personal responsibility when it comes to sex, the spirit of the law presumes that individuals would do the responsible thing and get tested and know their status if they had any reason to suspect that they may have contracted HIV, and not purposely prolong getting tested because they fear being prosecuted in the future.

This brings up the controversial question about what exactly should be the responsibility, whether legal or implied, of individuals as it relates to sex and health. Generally speaking, as a matter of public health should individuals be mandated to know their status? Depending on your answer that has serious personal, economic, and health ramifications.

Recently, San Francisco health officials announced new guidelines mandating that anyone who becomes aware that they are HIV positive must immediately begin an antiviral medication regiment. The new guidelines are a dramatic shift from the previous guidelines that required individuals who became HIV positive to start taking antiviral medication only when their immune system began to fail. Proponents of the new regulation argued that the new guidelines will go a long way to curb the rate of transmission in San Francisco, while opponents argued that antiviral medication is costly and its long term effects on the body remain unknown.

Mary Mallon refused to get tested when health officials initially suspected that she was a healthy carrier. Mallon literally kicked and screamed as health officials had her carried away to get tested for S. typi. Her refusal to get tested was likely the realization on her part that if it was determined that she was in fact the carrier it would be difficult, if not impossible, for her to find work ever again.

After initially being detained Mallon was released early with the understanding that Mallon would avoid seeking employment where the possibility existed that she might infect others. Five years later however Mallon was discovered to be working at a hospital as a cook again, under the pseudonym Mrs. Mary Brown, where they were recently twenty-five cases of typhoid fever.

Today, many states mandate that a positive partner must disclosure their status before sexual intercourse, or else face the possibility of serving time in prison. Some HIV advocates have argued that such laws have resulted in positive people being marginalized because of the fear and misinformation that still surrounds HIV/AIDS. The result of which they argue has made it difficult, if not impossible, for positive people to find (sexual) partners–a fate worse than death!–even if the HIV-positive person is taking the appropriate steps to lower chances of transmission.

In January 2010, Olympic equestrian bronze medalist, Darren Chiacchia, made headlines when he was arrested in Florida after his former partner tested positive for HIV and it was discovered that Chiacchia did not disclose his status, which is required under Florida law. Chiacchia’s trial which is set to begin in the summer has reignited the debate and scrutiny over HIV transmission laws; in particular because since these laws were passed our collective knowledge and treatment measures of HIV have significantly grown to the point that it calls into questions many of the statutes. Such as state statutes that make it a felony for an HIV positive person to spite or bite someone, even though the evidence indicates that the chances of transmission through salvia are extremely rare.

The gold standard many HIV advocates would like to see adopted centers around consent. They argue relying only on consent reinforces personal responsibility without infringing on the right or ability of HIV positive people to choose not to disclose their status, and thus avoid the stigma attached to the illness. Hoffmann argues that if a person gives consent to have unprotected sex they are taking on the assumed risks and should be as culpable as the positive person. This stance is problematic because condoms are not a hundred percent perfect and intimately tied to that there is the general assumption that in giving consent an individual is fully aware of all of the variables at play and not just possible consequences that exist purely in the abstract.

While there certainly is room to argue the merits of personal responsibility, it seems far fetched to suggest that knowing the status of your immediate partner(s) would not be beneficial when it comes to determining whether or not you are going to consent to protected or unprotected sex. HIV advocates who take the position that consent should be the standard fall back on the scenario in which a positive person who must endure the stigma and days on end of not finding willing partners as a defense. However, while that is tragic and quite possibly the norm, it is not the only conceivable scenario. It is not unreasonable to assume that someone after weighing the all of the variables might in fact give consent to protected or unprotected sex, especially if the positive person is on antiviral medication that lowers the chance of transmission. It is also not inconceivable that a non-positive partner after weighing the various outcomes might say yes, but stipulate to low-risk sexual behavior, whether oral sex, mutual masturbation, or in light of more recent political events might try tea-bagging. As any HIV advocate would tell you, positive people can have an active and healthy sex life where they do not place their partners in a high-risk scenario of possible transmission.

Make no mistake these laws do imposition positive people and requires them to do things that the state does not mandate of non-positive people. This reality becomes further difficult for us as Americans to tolerate when we accept the fact that for many positive people their status was not something they irresponsibly brought upon themselves. For many of them were exposed to the virus as children, contracted the virus from their mothers in the womb or when they were breastfed; for many others they were lied to by their partners when they asked, or their partners at the time did not know themselves; and for many others they were raped or were exposed to the virus through other means. (And surely even in situations where a lapse in judgment might have been the inherent cause of someone becoming HIV-positive, as a society we should never adopt a “you deserve it” attitude when it comes to what we as a society should do to tackle the problem.)

Mary Mallon did nothing to deserve contracting S. typhi, she was as much a victim as the people who were exposed to the bacteria that hid in her body; however, once it was confirmed that Mallon was the carrier—which Mallon continued to deny vehemently–Mallon had a legal and arguably ethical responsibility to take appropriate steps to prevent the bacteria from spreading further. Mary Mallon was not the only healthy carrier of the bacteria, there were several other cases of individuals who had contracted the bacteria and like Mallon never showed any of the symptoms. However, unlike Mary Mallon when these individuals were tracked down by health officials they eventually complied and removed themselves from situations in which they risked spreading the bacteria to others–at the expense of their jobs and livelihood. Mary Mallon did not, and even after being given a second chance to do so Mallon continued to put the public at risk, which is what ultimately resulted in her being permanently quarantined.

The objective before state legislators and health officials is, or should be, how best to ensure public health; however, because of the nature in which HIV is commonly passed from one person to another it presents a different and arguably more difficult challenge than many other viruses or bacteria. Attempting to legislate what must happen during consensual intercourse between adults makes combating S. typhi look like child’s play. In crafting specific pieces of legislation some states have been more successful than others in establishing clear and outlined requirements of positive people, responsibilities of non-positive partners, and reasonable penalties to serve as a deterrent. That being said, some states have adopted alarming draconian policies that go well beyond what might reasonably be considered appropriate, and those should undeniably be changed.

All of these laws should no doubt be reevaluated as our understanding and means of addressing HIV evolve with time, and correspond to the most appropriate method for holding people who put others at risk responsible. These laws should in no way be an excuse to needlessly prosecute positive people, and should only be applicable where it can be demonstrated that an individual neglectfully or purposely intended to put their partner(s) in harm’s way. And here there is certainly room to look at whether a partner neglectfully or willingly endangered themselves, and have that play a factor in determining the culpability of the positive person.

On a final note it should be pointed out that Mary Mallon’s tragic fate was largely avoidable. While Mallon, like all HIV positive people, remained a carrier for the rest of her life, her quarantine on North Brother Island was the last resort health officials believed they had to keep the public safe, after Mallon demonstrated that she would not comply with their mandate for her to avoid interaction where she posed a risk of infecting someone else. Today in terms of humane treatment we have come a long way; none of the laws currently on the books that deal with how the state will treat HIV positive people go anywhere close to where New York health official went with Mary Mallon. And while many of these laws go too far for many, they do represent a progressive step in trying to tackle a public health crisis and not trample on individual liberty too far.

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