Mary D. Fan, Sex, Privacy and Public Health in a Casual Encounters Culture, 45 U.C. Davis L. Rev. 531 (2011), https://digitalcommons.law.uw.edu/faculty-articles/115
U.C. Davis Law Review
AIDS/HIV, privacy, public health, sexually-transmitted diseases, strict liability
The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. Controversial proposals have circulated, such as mass HIV screening for everyone aged thirteen to sixty-four, STD testing in high schools, mandatory HIV screening, strict liability in tort for HIV transmission, and criminalizing first-time sex without a condom. [para] This Article argues that we should explore informational interventions beyond the cumbersome and costly regulatory regimes of criminal and tort law and the STD-surveillant state. The Article proposes devolving information and power currently centralized in the state to people in the marketplace for sex and romance to ameliorate the information deficit that impedes informed consent to risk exposure. Information can be both a carrot and a stick. Providing more reliable ways to verify STD status and seeding a healthier culture of verification can be encouragement to get tested to enhance self-advertising. Rather than criminalization, which comes at too great a cost and too late, preventative privacy-piercing can be an alternative approach to deter the small subset of serial STD spreaders.