BIG BEAR CORNER

Welcome to Big Bear Corner where Frank J. Morano, ESQ.,  your favorite big bear attorney will provide commentary on current issues and court cases.


IV. Middle School

Being the parent of a middle schooler is stressful for so many reasons.  Homework gets tougher, puberty gets intense, and high school is looming.  We try to say to our kids, “I know, this sucks, but this too shall pass.”  Of the difficult issues we ask 13 and 14-year-olds to navigate, nothing seems worse than the social hierarchy and the want and need to fit in.  My kids have their mom and step-dad as well as a dad and a step-dad.  That’s at least two (sometimes three) more dads than most other kids have.  Thank goodness that this has made them essentially the “cool” kids in school.  Who knew? But there are, of course, plenty of difficulties.

To my knowledge, neither of my children have had to deal with any direct comments or bullying regarding their family structure.  However, the culture of middle school has changed little over the years.  My middle school aged son deals with a daily barrage of “that’s so gay” and jeers of “gay!” when someone’s avatar meets their demise in Fortnite.  While I am sure that any direct attack on their family would lead to a full-on screaming match with my little ones schooling their peers, I know it gets exhausting for them to lecture their friends every time someone calls something “gay.” The problem is, when does this go from simple middle school taunt to serious adult issue?  If these kids are not taught properly now, what is keeping them from thinking that this is ok as an adult?

Language is so very important.  I will be saying that over and over in Big Bear Corner. The earlier we teach our kids that, the better.  NJSA 2C:16-1 is the Bias Crime statute in New Jersey. It is a long statute, but to break it down to the basics: if you commit a crime and one of the motives of that crime is found to be discrimination towards a member of any of the protected classes, you have committed an additional crime.  And the penalties are severe.  If found guilty under the statute, you are guilty of a crime that is one degree higher than the underlying crime.  That is, on a third degree burglary (for which you could normally see a possibility of 3-5 years of state prison, but for which there is a presumption of non-incarceration), you would be found guilty of a bias crime in the second degree and would not only be looking at a higher sentence (5-10 years), but would also lose the presumption of non-incarceration.  In other words, you’re going to state prison.

The statute covers gender identity, gender expression, and sexual orientation.  A simple bar fight (simple?) turns into a lengthy state prison term very quickly if we are throwing around the word “gay.” Even more likely, though, a disorderly or petty disorderly harassment charge turns into a felony charge.  Now that is really learning the lesson of acceptance and the impact of language the hard way!

So when you hear the kids in the yard and someone calls something “gay,” it is worth taking the time to explain that, not only is it hurtful to use the word in the negative way, but also that even the law views it as such.  Let’s break this chain.  Maybe this doesn’t have to be a “typical” middle school issue any longer.


III. The Criminalization of HIV

Oh, New Jersey. So progressive but still so behind the times.  While LGBTQ+ rights have flourished in this state more than in almost every other state in this country, we still have a long way to go.  We are the lucky few that are protected against much of what our community goes through in the rest of the nation.  One place we do fall behind in however is regarding a topic that, while it affects the LGBT community disproportionately, also affects the greater population: the criminalization of HIV. 

New Jersey Statute Annotated 2C:34-5 is titled “Diseased Person Committing Act of Penetration.”  That title, in and of itself, is a lot to unpack in a three to four paragraph blog.  However, let me just point out the giant pink elephant in the room: diseased person.  It gives a terrible vision of the Monty Python “Bring Out Your Dead” sketch, but without the dry British humor that we so enjoy. Diseased person? Really? It is written to instill fear, plain and simple. 

Taking a look at the statute, there are two parts to it: part (a) makes it a fourth-degree crime to knowingly have sex with someone if you have a communicable disease.  “Communicable disease” is a general term, but the statute points out several sexually transmitted diseases, so we know what they mean.  Part (b) makes it a third-degree crime to have sex with someone when you knowingly are HIV positive (in other words, the “crime” in part (A) is deemed more severe if you are HIV positive.)

A closer look at the statute is important.  It isn’t that you are infected and can “knowingly” pass the disease to another, it is just “knowing” that you carry the disease.  Why is this so problematic? Because it does not take into consideration ANY of the huge strides in HIV treatment and prevention that have occurred in the last 5 to 10 years.

There are so many treatments for HIV.  The number of viral suppressants with little to no side effects grows every day.  When a person who is HIV positive has a viral load that is “undetectable”, that is, blood tests cannot detect the presence of the virus, that person effectively cannot pass on the virus to another person through sexual contact.  However, I should say that I’m not a doctor so don’t just take my word for it.  Check out the CDC website. Start here: https://www.cdc.gov/hiv/pdf/risk/art/The-Journey-to-Undetectable-Brochure.pdf?sf113390671=1

Now, what if a person who is HIV positive and undetectable does not disclose that to their sexual partner? While it may be that they had no intention of harm, they are still subject to a third-degree charge and up to five years in prison because of that one act.  Thus, we see that an action with effectively zero risk according to professionals leads to a five year prison sentence. 

But what about PreP? (Straight people, PreP is a pill that can prevent you from getting HIV.) What if the person who is HIV positive knows their sexual partner is on PreP?  Again, this does not matter.  What if (even easier!) they use a condom? Nope, the statute allows no such claims as a defense. 

Look, I get it.  You don’t get to play God.  You don’t get to make these types of decisions for another person.  But one thing that the statute does not take into account is the assumed risk of the person that is the supposed “victim.”  As we all know, sex comes with risks, and I think that being ignorant of those risks is something that should be considered. The problem with this though is that we run the risk of victim blaming, which we should NEVER do. 

I understand and of course appreciate the reason for these laws.  I’m not asking for a free-for-all; I’m simply asking for us to use common sense.  I don’t disagree with these laws when they are applied correctly and justly, but they need to catch up.  And there needs to be clear guidance on their application.  I don’t know what this looks like exactly, but this draconian approach we have at the moment is not it.


II. Click-Bait

I sometimes fall into the rabbit hole of Facebook “click-bait” fun-fact “articles.” I mean, we all do right? Who doesn’t want to see “Colorized Photos from the Civil War” or the “Why TV Characters Were Written Off a Show for Real Life Reasons?” They’re fun and brainless and, in 2020, we could all use some fun and brainless. 

I was down this rabbit hole the other day and came across a post that was basically how real life situations make tv moments awkward.  The one segment mentions how Two and a Half Men became awkward because Charlie Sheen’s character is a womanizer on the show and he was just diagnosed, in real life, with HIV.  This “factoid” was so short sighted and stigmatizing, I just could not stop thinking about it.  This stigma of HIV must stop.  One of the problems is that it is so ingrained in our society, even legally.

Twenty-one states have laws that criminalize HIV transmission.  These laws range from issues of blood donation (a separate blog for a later time,) prostitution, needle sharing, and non-disclosure.  Let’s focus on non-disclosure.  If you are HIV+ and have sex with someone without disclosing it, in some states, not only is that criminal, it can land you up to a life sentence.  Yup, that’s right. 

One of the problems is that these laws can be applied broadly, not for the purpose that they were intended.  The intention of these laws is to keep people from using HIV as a weapon.  Yes, if someone is HIV+, purposely not treating, and then purposely trying to infect others, there is a crime.  While this scenario may make you think that no person would ever do that, it has happened.  Even in these scenarios, however, are the sentences doled out appropriate for the crime committed? Usually not.   

And what about those who are prosecuted under these laws who have no intention? What about these laws further stigmatizing the idea that someone who is HIV+ is a walking/talking weapon? How do the more recent breakthroughs in treatment, prevention, and findings from the CDC impact these laws as written? The next post will address these issues so check back!  


I. Tech Based Relationships

A few months back I posted a blog here about a New Jersey Appellate case, C.C. v. J.A.H., where the Court found that a dating relationship existed between heterosexual parties that had never been on an actual date and who only saw each other in person at the gym where one was an employee.  However, the parties had exchanged approximately 1,300 text messages, many, according to the holding, were sexually explicit in nature, and some were photos. The Court found that there was a dating relationship, and a final restraining order was appropriate.

You may be thinking, “Well, apparently I’m dating every guy on Grindr.” And you wouldn’t be alone.  The gay “dating” apps are all about texting, pic trading, and, let’s be honest, hooking up.  It is part of our culture as gay men, whether you participate in it or not.  I know, I know, some of you would never.  Sky diving is a thing and not all of us do it.  But for those that do, there are some real dangers.

While some guys do not participate in the pic trading and text dirty talk, I sometimes wonder if trading nudes is like shaking hands for some of us.  “Oh hi! Nice to meet you. I’m an accountant.  Live in Springfield.  Here’s my penis.”  With this Appellate holding, we now have to think if we are exposing ourselves in more ways than one.  If a Court is going to scrutinize our text messages and Scruff profiles, what does that mean to that bit of our culture? The fact is, we do not know yet.  It may come down to having the right lawyer if you find yourself in the situation to defend yourself. 

While the defendant in C.C. v. J.A.H. had a pile of other issues with him on top of the “dating relationship” that led to the FRO (Final Restraining Order), checking off the first box of establishing the relationship is still an important one.  And it might just be explaining to a straight Judge and opposing counsel just what this might mean for gay men.  Good luck to us all.