in sauce from a jar and lighting candles on the table, and in the afternoon he had quick sex with others whom she tried not to think about or not to believe. About the violence, which she remembered casually, almost as one would the events of a summer vacation, she said, “Obviously I believe in second chances … I guess the reason I didn’t leave is that I’m a violent person too. He just had to say something smart and I’d hit him. I don’t know, my dad used to hit me, my mom used to hit me, I fought with my brothers. I thought it was normal.” She bargained for what safety she could—denying him sex, leaving town for a while, taking a blow, giving one back, demanding respect, not getting it, then getting it, provoking him, evading him, insisting on a condom, not insisting, not even wanting to insist, trusting, not trusting, and never once assuming that protection might rest with persons who were as much her oppressors as his. Finally she’d had enough.
When I first met Amber I asked her about danger, and she said that before all the posters and the panic, HIV wasn’t anywhere on a scale of one to ten for her. She hasn’t been sheltered from AIDS. A cousin and her boyfriend died of it; Amber’s stepsister’s uncle died of it; his boyfriend was either positive or had AIDS when he moved away after the uncle died. She just didn’t worry about it for herself, not in Jamestown. Her biggest fears, she said, were being in jail and being alone. Now she was both, not having heard from her latest man, the one whose name is tattooed on her stomach, the one to whom she could tell anything, the one who would not hit her. They had a fight, he doesn’t write easily, has no phone—couldn’t afford to accept the charges, wildly inflated, if he did—and no ID. No one visits at the jail without ID. Somehow it seemed too small to be talking about risk, but we talked about it anyway.
“What would life be without putting yourself out there sometimes?” she said. “I tell this to my mother. My mother’s life is this: she goes to work, goes to the bar—she’s not a drinker or anything, she just goes there—goes home. Every day: go to work, go to the bar, go home. I asked her, ‘What’s the point, Mom? What is the point of your life?’ What could she say? There’s nothing she could say. That’s why I have to get out of Jamestown. It’s not anything about the town; it’s me. It makes me unhappy to be here. And I don’t want to be unhappy.”
“But do you think there are things you could do to protect yourself more from hurt?”
“There’s no way. No way. Because whatever you do, as long as you’re alive, there’s a scale of hurt. There’s the kind of hurt you get from loving someone, and the kind of hurt you get from keeping just to yourself and not letting yourself love nobody. So either you’re gonna get hurt because of someone you love, or you’re gonna be lonely. Either way, you’re hurting yourself. The point is, you’re doing it to yourself. You’re making the decision.”
In a time of epidemic, every woman has to decide for her own safety, and every man for his. Out of New England recently came a report that four out of ten persons who are HIV positive don’t tell their sex partner, and two-thirds of those don’t always use protection. Somebody didn’t tell Nushawn Williams—some woman, he says—and maybe somebody else didn’t tell her. The cascade of recrimination for all the anguish in Jamestown, as in America, is endless if you want to go that route; and many do. Almost thirty states have laws criminalizing the behavior of people who are HIV positive. Without disclosure, consent is no defense, and in most places neither is the use of a condom. More than 300 persons have been prosecuted for reckless endangerment, or assault with a deadly weapon, or attempted murder. Many of these are prisoners who spit at or bit corrections officers (often in the course of being beaten), even though there’s no known case of HIV transmission by those means. And many are people who didn’t tell the truth.4
The truth? Suppose Nushawn Williams is prosecuted for sex as proposed. Imagine two “victims.” Both of them consented, neither insisted on protection, both engaged in the same act of vaginal intercourse. Suppose, just to complicate matters, that they both enjoyed it. But one of them is positive and one is negative. The same “crime,” the same “weapon,” but one conviction could bring almost 250 percent more jail time. Proponents of this scenario say it’s no different from murder and attempted murder, except in this case the “bullet” hit in exactly the same spot and the victims were willing participants. Suppose further that the woman who is positive had another sexually transmitted disease—herpes, chlamydia, gonorrhea—that made her more vulnerable to contracting HIV. Suppose that the person who gave that to her, and thus compromised her health in a way that the negative woman’s health was not compromised, never told her he had it. Suppose, moreover, that she didn’t tell Williams, though exposure to something like herpes could be quite dangerous for someone with HIV. And suppose, beyond all those suppositions, that when it comes to sex people lie about a whole host of things, or they forget, or they have vendettas, or they need to protect someone, maybe themselves. How can it even be known, finally, whether the weapon is indeed Williams’ body and not someone else’s?
DNA! But DNA matching in HIV cases, according to Dr. Marcia Kalish at the CDC, “doesn’t prove anything. It simply supports the fact that there could have been recent transmission. It’s not like matching blood; you don’t have that definite answer. It’s just a very small piece of the puzzle.”5
The terrain gets slipperier when you think for a moment about the real way people have sex—the way risk arouses and arousal subordinates thoughts of risk, the way shame influences almost any discussion of desire, the way denial is always, always at work. If a woman begged for it up the ass because she wanted to avoid pregnancy or maybe because she actually likes it (yes, even nice girls do), would she admit it, or would she worry that such an admission would put her in a different category of victim, the one occupied by drug users and homosexuals? If a person was told he is HIV positive but also “knows,” the way so many straight Americans “know,” that “it’s almost impossible to get it just from sex between men and women,” might he have assumed—still in considerable disbelief about his condition—that the risk was rather low and he was just unlucky? And then how might this assumption—on which hangs the balance of guilt or innocence—have played out in the sex act? As the calm preface to judicious decision-making, or as one of a hundred flighty things in a highly fractured process of thought? So how does a court of law have the means or the right to decide any of this?
Intent is a necessary requirement for criminal prosecution. In California recently, an appellate court ruled that assault charges could not be brought against an HIV-positive straight man who failed to disclose his status, because some studies show that the annual rate of heterosexual transmission from man to woman is quite low—5.7 percent—and, applying the reasoning of the betting parlor, it could no more be said that he intended to cause harm than that somebody who put money on a horse favored seventeen-to-one intended to lose. It was a victory against criminalization, but by this logic it might be argued that groups whose odds of transmission are higher, or who, unlike the avowed heterosexual, have been branded with the scarlet A, ought to be criminalized. Criminal intent is extremely difficult to prove in consensual sex cases, gay or straight, which is why laws proscribing the behavior of HIV-positive individuals simply say that knowledge equals intent to harm.
Which brings us back to the fuzzy matter of truth. In the Bronx courtroom in late February, a defense attorney was telling a colleague that he would favor new criminal law to prosecute people like Nushawn Williams, “people who know and don’t tell.” People who don’t know—that’s another matter. So, suppose a man, maybe a man like this lawyer, has unprotected sex. And suppose he doesn’t think HIV can touch him, so it never occurs to him to be tested. Then suppose he doesn’t tell his wife he’s had sex with others, and one day she discovers she is HIV positive. With the same outcome, the lie of Nushawn Williams is a crime while the lie of the hypothetical lawyer is an unfortunate mistake. To be consistent, every lie would be a potential crime and every one of us a potential criminal.
In the sex panic around Nushawn Williams—as in the scandal around President Clinton, for different reasons—scarcely anyone pauses to consider the big lies
