A
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
Carriker
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
Carriker’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
had
sex.
Carriker
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
Carriker,
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,
they
had
no
business
bringing
charges.
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
Carriker
faces
there
for
simply
engaging
in
oral
sex
without
disclosing
his
status.
(
Fulton
prosecutors
were
apparently
also
too
squeamish
to
ask
if
Carriker
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
Carriker
for
having
oral
and
anal
sex
with
a
second
Atlanta
man
and
they
say
Carriker
was
the
top;
but
it’s
still
unclear
whether
the
sex
was
protected.
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
Carriker
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
Carriker
and
ex-boyfriend
Withrow,
the
sex
was
oral
and
anal,
and
it
was
unprotected.
Should
Carriker,
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
Carriker
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,
Carriker
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.
An
even
then
the
law
should
probably
only
be
prosecuted
when
the
victim
is
infected
with
the
virus
(even
if
it
can’t
be
proved
who
actually
is
responsible).
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
...
