Piercing the Veil of Secrecy in HIV/AIDS and Other Sexually Transmitted Diseases: Theories of Privacy and Disclosure in Partner Notification -- Contact Tracing, the 'Right to Know,' and the 'Duty to Warn'

Duke Journal of Gender Law and Policy, Vol. 5, Pp. 9-88, 1998

89 Pages Posted: 20 Oct 1999 Last revised: 21 Dec 2018

See all articles by Lawrence O. Gostin

Lawrence O. Gostin

Georgetown University - Law Center - O'Neill Institute for National and Global Health Law

James G. Hodge

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: October 17, 1997

Abstract

For centuries, persons have endeavored to keep their sexually-transmitted infections hidden from the social world -- from their sexual partners, families, and communities. Secrecy nurtures disease for it provides an environment conducive to the spread of infection. Sex partners are unaware of the risks, and public health authorities cannot track the epidemic. Not surprisingly, one of the earliest recorded public health strategies for sexually-transmitted disease (STD) prevention was to pierce the veil of secrecy surrounding these hidden diseases by notifying sexual partners ("contacts") of infected patients ("index" cases). From its widespread use during the 1930's, the notification of sexual partners with the assistance of public health authorities remained an accepted part of the law and practice of STD control.

The modern public health construct known as "partner notification" is often confused with other legal and ethical duties. Known collectively as the "duty to warn," these judicially-imposed, common law obligations are comprised of two duties based on distinct legal foundations: (1) the duty of infected persons to disclose to partners the risk of exposure and (2) the duty of health care professionals to warn partners of harm resulting from exposure to infected patients. These duties constitute two other meanings of partner notification besides contact tracing. To public health practitioners, the traditional practice of partner notification -- its widespread, persistent, and systematic use over time in relation to traditional STDs or HIV/AIDS -- justifies its continued implementation. Despite its widespread use, partner notification has not been systematically analyzed.

This piece examines partner notification from legal, ethical, empirical, and economic perspectives. Under this analytical structure, they find that partner notification is not justified as a national public health practice. Although its basis in moral tradition is sound, the lack of demonstrable proof of its effectiveness, both empirically and economically, renders it unacceptable for widespread use in the field of public health where scientific support of usefulness as a preventive strategy is crucial. The authors support and discuss alternative models for STD prevention and control that are both effective and protective of individual liberties and privacy.

Keywords: partner notification, ethics, partner counseling, right to know, right to privacy, law, policy

Suggested Citation

Gostin, Lawrence O. and Hodge, James G., Piercing the Veil of Secrecy in HIV/AIDS and Other Sexually Transmitted Diseases: Theories of Privacy and Disclosure in Partner Notification -- Contact Tracing, the 'Right to Know,' and the 'Duty to Warn' (October 17, 1997). Duke Journal of Gender Law and Policy, Vol. 5, Pp. 9-88, 1998. Available at SSRN: https://ssrn.com/abstract=187370

Lawrence O. Gostin (Contact Author)

Georgetown University - Law Center - O'Neill Institute for National and Global Health Law ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9038 (Phone)
202-662-9055 (Fax)

James G. Hodge

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Sandra Day O'Connor College of Law
111 E. Taylor Street, MC 9520
Phoenix, AZ 85004-4467
United States
480-727-8576 (Phone)

HOME PAGE: http://https://law.asu.edu/degree-programs/public-health-law-policy

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