There is a bizarre story out of Barcelona where people are engaging in activity called “sex roulette” where people have unprotected sex knowing that one of the group is HIV positive. For some reason, this adds an element of danger for such people in not knowing if they will contract a lethal virus. Putting aside the deeply disturbing psychological element, there could be some interesting legal elements for anyone who wants to sue. Presumably, this is the ultimate case of an assumption of the risk and plaintiff’s conduct as a defense. However, the party organizers could also be viewed as creating a type of ultrahazardous or abnormally dangerous activity. While defenses could still apply, the question would be law suited from family members or third parties.
“Sex roulette” has been traced to sex parties in Serbia and obviously named after Russian roulette. While the parties are often with gay men, it does not appear limited to that segment of the population. I frankly doubt that this has a significant practice and, if so, it has its own principle of attrition. I still believe that the vast majority of people would find this offensive and insane. However, even a small fraction of people willing to engage in such a practice is shocking.
The Second Restatement describes the factors for ultrahazardous or abnormally dangerous activities:
the Restatement (Second) of Torts, § 520:
“In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.”
Of course, the tricky part is defining the activity. It is possible to have protected sex with an HIV positive person. However, this activity is defined by its reckless premise of unprotected sex in a group with one known carrier. IT is certainly an activity with no redeeming social value but high social costs.
What is truly chilling is the lack of consideration for family and friends who could have to watch the person deteriorate with full-blown AIDS. I suggest they view the heartbreaking photo of David Kirby being hugged by his father in 1989 in one of the first national photos of the AIDS epidemic. There is nothing thrilling or exciting for these grieving family members or the victim of this horrible plague.
What turley leaves out is “strict liability”……hides that vocabulary behind “ultra hazardous”. The problem is the first group plays roulette….knowingly…while any or all or any of them can get hiv. Yet it takes months for hiv to “test” but it doesn’t mean tbey weren’t contagious before that.
No one exposed to hiv has been given a test everyday to determine on what day they might be able to pass it. Think ebola and zika and std.
So these ppl want their rocks off so bad….they are willing to abstain until when?
Strict liability. And how do you enforce that? Only by outlawing and enforcing the roullette orgy. Getting in the bedroom. Ie recinding hippa for stds. Make it public. Then they’ll get sane.
Seriously? Someone is comparing this situation to voting? Not everything in life is comparable to an election, folks.
“I frankly doubt that this has a significant practice and, if so, it has its own principle of attrition.”
Well, but that attrition will take more than a decade, during which that person could have been cheating on a partner who thought they were monogamous, share needles, donate blood which gets tested as a false negative if it happened soon after infection, or do any number of activities that spreads the virus to those who did NOT engage in a suicidal game.
Olly – absolutely true. We neither discuss nor analyze the long term effects of what may provide a short term gain. Take Bernie Sanders, for instance. He’s a self described socialist who claimed that a 95% tax rate would not be too high. What would be the intuitively obvious result on jobs if employers were taxed at 95%? Could they still keep their business running and employ people? Would they bother? Sure, you’ll get free stuff, but we’ll be like Cuba where they all live in crumbling houses and live on $20 a month.
I think this is the same mentality that would encourage someone to vote for a candidate based solely on a short-term want or need. For example, a millennial wants a free college education or to payoff a student loan, so they will vote on that issue completely disregarding the multitude of evidence that the candidate would destroy any chance they have to find a long-term job. They get rid of their debt but they still have this evil candidate to deal with now.
How does one have “protected sex”? Wear a wet suit and a condom and don’t kiss em? Just pork and be gone. Throw away the wet suit and condom and wash up with bleach. Then puke. Then…
MAU! MAU! DIDI MAU!
https://s-media-cache-ak0.pinimg.com/236x/a7/96/5d/a7965d56a10110115ef57883eeefe832.jpg
I question if this is actually a real thing, or an inflated scare piece by people that heard from people. Just recently we were being warned about the dangers of putting stick family images on our cars, despite the complete lack of any evidence of actual danger.
Depending, obviously, on the jurisdiction I see the potential for criminal prosecution against the HIV+ participant.
Some jurisdictions prohibit the intentional exposure of a person to HIV to another. In this example intent is the essential element. I suspect an HIV+ patient knowingly participating in such a game would satisfy the intent element with regard to exposure.
At a lower level of criminal liability would be the reckless endangerment prosecution since engaging in such games are clearly reckless and above a liability principle of negligence.
A defense in many jurisdictions would be that the victim is a participant and consented to the criminal act.
Since full blown AIDS is many, many years down the road, if ever, they are not worried about it. It is like a roller coaster ride with a chance the roller coaster will leave the tracks and take off on if its on.
The “chilling part” is that friends and family members will have to watch the person, who knowingly, willingly and gleefully engaged in this outrageous and deadly conduct, suffer, deteriorate and, ultimately, die of full-blown AIDS? That’s far from the “chilling part” when speaking of individuals who voluntarily and willingly choose to participate in such suicidal behavior. The chilling part of such a scenario is that the infected individual, and/or individuals, emerging from such a sexual escapade, then proceed to infect other unsuspecting victims–victims who have no clue that they are engaging in sexual activity with an HIV-infected partner. Most normal and sane people would opt out of engaging in sexual activity with an infected partner. Unlike the person–insane enough to openly chase the virus in a game of sexual roulette with a known HIV-infected participant–the innocent and uninformed future sexual partners of said person are the true victims here–not the participants in these orgies.