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.