Vol. 76, No. 2, February
Who has the Right to Know?
Although HIV infections continue to occur at an
alarming rate, medications are drastically reducing the number of deaths
from aids and improving the quality of life of HIV-infected people.
Lawyers who advise HIV-positive clients need to emphasize that the best
way to avoid stigmatization and discrimination is to be selective in
whom clients entrust with information about their HIV status.
Christopher S. Krimmer
Whether you are a sole practitioner in Superior or work for a large
law firm in Milwaukee, the chance that you will be confronted with a
legal issue involving the confidentiality of human immunodeficiency
virus (HIV) becomes more likely by the year.
Wisconsin has approximately 8,000 residents living with HIV and
AIDS.1 Nationally, the number of HIV
infections continues to increase annually by 45,000. We are reaching
close to one million Americans afflicted with HIV and AIDS.2
During the late 1980s to early 1990s, the conceptive period of the
HIV epidemic, people with AIDS mostly consulted lawyers for emergency
wills and power of attorney documents. Fortunately, the advent of new
medications has drastically reduced the number of people dying from
AIDS.3 In 1993, Wisconsin lost 370 people
from AIDS. Last year, the number declined to 92 people.4 HIV-positive persons are doing things never
dreamed of a mere 10 years ago. They are returning to work, purchasing
real estate, starting businesses, and planning families.
An essential element to meeting these personal and professional goals
is achieved by protecting the confidentiality of their HIV status. It is
the success of keeping their medical status confidential that helps
protect HIV-positive persons against stigmatization and discrimination.
It is important for lawyers who work with HIV-positive clients or have
clients who work with the HIV population to know what laws protect this
Wisconsin's HIV Confidentiality Statute: Wis. Stat. Section
The AIDS Resource Center of Wisconsin's Legal Services Program (ARCW)
is a nonprofit agency that provides legal representation to people
living with HIV and AIDS throughout Wisconsin. In 2002, the attorneys at
the ARCW provided representation and consultations to more than 400
people living in the state with HIV and AIDS. The biggest misconception
among these clients was the protection of their HIV status. Most clients
believed that once they told someone else about their HIV status, the
other person had a legal duty not to further disclose that person's HIV
status to additional people. Often, the ARCW receives calls from clients
who want to stop an ex-boyfriend or ex-girlfriend from telling mutual
friends about the client's HIV status. Unfortunately, Wisconsin's HIV
confidentiality statute distinguishes a person's HIV status from a
person's HIV test result.
The Wisconsin HIV confidentiality statute was enacted to acknowledge
the highly sensitive nature of a person's HIV test result.5 It provides that no health care provider, blood
bank, or testing site may disclose an individual's test results.6 A person's right to confidentiality in his or her
HIV test results is premised on the idea that people will be more likely
to seek HIV testing if they know that this information will remain
In Wisconsin, patients are offered either a confidential HIV test or
an anonymous HIV test. A confidential test for HIV usually is conducted
by a person's personal physician and the test results recorded in the
patient's medical file. If a person elects to have an anonymous test,
which is offered by various health care organizations, the person
chooses a numerical code instead of providing his or her name.
If a person elects a confidential test, the testing site or
health-care provider must maintain that person's test results in the
strictest of confidence. The test results can be disclosed only with
specific consent by the patient or, without the patient's consent, to a
limited group of people as permitted under the Wisconsin HIV
confidentiality statute. For example, the health-care provider can
disclose a patient's HIV status - without the person's consent - to
other health-care providers of the patient;7
to a parent of a patient who is 14 or younger;8 to the person who holds the patient's power of
attorney for health care, if the patient has been declared
incompetent;9 and to a first responder who
had been significantly exposed by the patient.10 Additionally, a health-care provider must
provide the identity of all HIV-positive patients to the state
epidemiologist for the purpose of partner notification and
epidemiological surveillance.11 For this
reason, many individuals choose to be tested anonymously.
It is important to note that the statute broadly defines the term
"health care provider" to include not only physicians and nurses but
also pharmacists, social workers, occupational therapists, dietitians,
and even acupuncturists.12 It does not
include, however, the people who are most likely to learn about a
person's HIV status from the client: family members, partners, and
friends. This is why it is pivotal that a person living with HIV be
cautious in deciding who to entrust with this information.
Even though the Wisconsin HIV confidentiality statute may not apply,
an ex-boyfriend or ex-girlfriend who discloses a person's HIV status to
others may still face legal liability. The person whose HIV status was
disclosed may seek a remedy by traditional causes of action such as
intentional infliction of emotional distress and invasion of
If the defendant's conduct is extreme and outrageous, and accompanied
with a purposeful intent to cause emotional distress, the HIV-positive
person may recover for his or her emotional distress.14 For example, this may occur when the person has
a falling out with a friend and that friend intentionally discloses the
person's HIV status to the person's employer or family.
In Wisconsin, a person's right to privacy is codified at Wis. Stat.
section 895.50. A plaintiff must prove that the defendant gave publicity
to a matter concerning the private life of another without any
legitimate public purpose in the disclosure. HIV-positive plaintiffs
have successfully argued that "public" can consist of as few as five
people.15 The challenge in these cases is
finding witnesses who are willing to step forward to implicate the
defendant. It is difficult to ascertain who knows the information and
how they learned about it.
A guiding principle in advising clients with HIV is to emphasize to
them that the best way to avoid stigmatization or discrimination is to
be selective in who they entrust with this information. If they do tell
their HIV status to others who then violate their trust, they should be
aware that there are some limited remedies available to them.
HIV Confidentiality and Criminal Law
The single biggest caveat to advising a client to be cautious about
sharing his or her HIV status involves disclosure to sexual partners. If
a person with HIV engages in unprotected sexual intercourse with another
person, he or she may face criminal liability for that conduct.
S. Krimmer, U.W. 1997, practices with the AIDS Resource Center
of Wisconsin's Legal Services Program, Milwaukee. The author thanks
program associate Dawn Caldart for contributing to this article.
Wisconsin does not have a criminal statute that specifically
criminalizes HIV exposure through sexual intercourse. Rather,
prosecutions can be pursued with charges of reckless endangerment,
assault and battery, or even negligent homicide, depending on the
The criminal charge in Wisconsin most commonly used by prosecutors in
this situation is reckless endangerment. The crime requires proof that
the defendant recklessly endangered the safety of another with utter
disregard of human life.16 A prosecutor
could argue that an HIV-positive defendant who knowingly engages in
unprotected sex is recklessly endangering the safety of the sexual
partner. Reckless endangerment is a felony that can carry a prison term
of up to 10 years.17
People who were unaware of their HIV status or were aware of their
HIV status but practiced safe sex likely would not be prosecuted
criminally. Additionally, people who tell their HIV status to a sex
partner, who nonetheless consents to unprotected sex, also likely would
not be prosecuted under this statute. An HIV transmission case is
generally very difficult to prosecute since it turns on whether
disclosure was made or not. It ultimately becomes a "he said, she said"
Some public health officials question the wisdom of criminally
prosecuting people for transmitting HIV.18
Fewer people may be willing to be tested for HIV if they know that there
are punitive ramifications. The populations most vulnerable to HIV may
lose trust and confidence in public health programs and not seek HIV
counseling, education, and treatment. As a result, more people will
unknowingly infect others with the virus.
Lawyers who advise HIV-positive persons must strike a delicate
balance of notifying clients of this potential criminal liability while
also encouraging them to be selective in whom they choose to tell about
their HIV status. A lawyer who has a client who is HIV positive and who
wants to protect the client's privacy while avoiding any potential for
criminal charges would serve the client well by explaining the legal
importance of practicing safe sex.19 It is
advisable to refer the HIV-positive client to an AIDS community-based
organization or infectious disease control physician who can make
certain that the client is aware of the precautions that should be taken
to prevent HIV transmission.
Confidentiality in the Workplace
One of the many benefits of the new HIV medications is that many
people with HIV feel well enough to work. State and federal laws
encourage people living with HIV to continue to be productive members of
the workforce by protecting their right to confidentiality.
Wisconsin law allows the state epidemiologist and Department of
Health and Family Services (DHFS) to identify occupations in which an
HIV-infected person's performance would pose a significant risk of
transmitting HIV to other individuals.20 To
date, the DHFS has not identified any such occupation.21
Employment applications cannot ask an applicant about his or her HIV
status.22 Nonetheless, many people with HIV
will inadvertently disclose their HIV status. Frequently, an employment
application will ask the applicant if he or she has any health
conditions that would affect his or her ability to perform the functions
of the job. Although this is a permissible question under the law, many
HIV-positive persons construe the question as a request for a list of
their health problems. Applicants who are HIV-positive and asymptomatic
can truthfully answer "no" to this question. The disclosure of the
applicant's HIV status becomes relevant only if the HIV has progressed
to such a degree that the applicant would require a reasonable
accommodation under the Americans with Disabilities Act (ADA) in the
performance of his or her duties.
Applicants or current employees who request a reasonable
accommodation because HIV is affecting their ability to perform their
job may need to disclose their current health status to the employer.
The employer has a right to determine whether the person's health
condition rises to the level of a disability as defined in the ADA. A
lawyer assisting an HIV-positive individual who wants a reasonable
accommodation should send the request for accommodation with a reminder
that the employer has a duty to keep this medical information
confidential and separate from the employee's personnel file.23
Aside from a request for a reasonable accommodation, an employer
should not learn of an employee's HIV status unless the employee
voluntarily discloses this information. If an employee does tell the
employer of his or her HIV status, the employer cannot discriminate
against that employee in any aspect of employment. The employer cannot
request the employee to take another job within the business, isolate
the individual from other coworkers, or reduce the employee's salary or
As we enter into the next decade of HIV, lawyers should be aware of
the dynamics of this disease and how it intersects various areas of the
law. The legal issues people with HIV are confronted with today are far
different from the legal concerns that arose in the early years of the
epidemic. The advent of new HIV medications has allowed HIV-positive
people a future - a future that is premised substantially on their right
to the same rights and privileges enjoyed by all people. These rights
and privileges are best achieved when persons with HIV realize what
rights they have as to the confidentiality of their medical information
and when they have a duty to disclose or not to disclose. Lawyers should
be prepared to advise HIV-positive clients of these rights and the
remedies available when these rights have been violated.
AIDS/HIV Update 22, Wisconsin AIDS/HIV Program, Division
of Public Health, DHFS (Winter 2002).
Centers for Disease Control & Prevention, HIV and AIDS - United
States, 1981 - 2001. MMWR 2001:50, 430-434.
Therapy Fact Sheet Number 05-June 2002 (visited Nov. 10, 2002)
supra note 1 at 27.
generally Wis. Stat. § 252.15.
Stat. § 252.15(5).
Stat. § 252.15(5)(a)2.
Stat. § 252.15(5)(a)15.
Stat. § 252.15(5)(a)1.
Wis. Stat. § 252.15(5)(a)11., 18.
Wis. Stat. § 252.15(5)(a)6.
Wis. Stat. § 252.15(1)(ar)1. (citing Wis. Stat. §
Wis. Stat. § 895.50.
Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 695, 271 N.W.2d
Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913, 920
n.9 (Ct. App. 1991) (citing Beard v. Akzona Inc., 517 F. Supp.
128, 133 (E.D. Tenn. 1981)).
Wis. Stat. § 941.30.
Wis. Stat. § 939.50 (second-degree recklessly endangering the
safety of another is Class E felony that carries prison term of up to
18For a more
in-depth discussion of the policy implications of criminal transmission
of HIV, see Richard Elliott, Criminal Law, Public Health and HIV
Transmission: A Policy Options Paper (UNAIDS, June 2002).
with HIV who knowingly transmits HIV to a sexual partner also may be
held liable in a civil action for assault and battery and intentional
infliction of emotional distress. See, e.g., Syring v. Tucker,
174 Wis. 2d 787, 498 N.W.2d 370 (1993).
Wis. Stat. § 103.15(2).
Jeffrey P. Davis., M.D., State Epidemiologist and Chief Medical Officer
for Communicable Diseases, Wis. Dept. Health and Family Services, Div.
Public Health, to Christopher Krimmer, AIDS Resource Center of
Wisconsin, Legal Services Program (Nov. 15, 2002).
Although Wisconsin has not identified any occupation that carries a
significant risk of transmission, it should be noted that courts in
other states and federal circuits have found that even a remote and
theoretical risk of HIV transmission allows an employer to terminate or
restrict an HIV-positive employee's work, especially if the employee
works in the health care field. See, e.g., Wadell v. Valley Forge
Dental Assocs. Inc., D.C. Docket No. 99-00262-CV-CAP-1 (Ct. App.
11th Cir. 2001).
42 U.S.C.A. § 12112(a) (1990).
42 U.S.C.A. § 12112(d)(3) (1990).
42 U.S.C.A. § 12112(b) (1990).