Consenting adults

Tyler, Texas--Texas district Judge Louis Gohmert, a deacon at his local Southern Baptist church, says if you're gonna have HIV-infected sex in his district, you're gonna have to get permission first. The judge insists he is only trying to protect the public by demanding that an HIV-positive probationer get written consent from future partners before having sex with them; but homosexual-rights groups and the attorney for the HIV-infected ex-con say they'll fight the judge's tell-and-kiss decree.

"This is not a punishment," Judge Gohmert insisted concerning his ruling last week. "It's common sense. Under the Texas Code of Criminal Procedure, a judge may impose any reasonable condition of probation to protect or restore the community. That is my reason for imposing this condition."

The defendant, a Louisiana man, was convicted for stealing a car last August in Tyler, Texas. Judge Gohmert sentenced him to the mandatory five years probation, but went on to create an informed consent statement the man must present any would-be sex partners in the future.

"When you go on probation, you give up all kinds of rights," the judge explained. "You give up the right to drink alcohol, you give up the right to have a weapon. As a term of probation, I can lock you up for a few months-and that's about the biggest loss of rights I can think of."

The defendant's attorney, William Wallace Jr., said he'll fight the order. "We're not sure if it'll be an appeal or a civil-rights lawsuit," he told the Tyler Morning Telegraph. "There are certainly liberty interests involved here. Certainly one loses some of your liberties whenever you're convicted of a felony, but is a restriction on sexual liberties one of them?"

If the convict ends up having to follow Judge Gohmert's decree, the answer is, Yes. The judge's consent form, which must be read to and signed by prospective sex partners, reads: "[The defendant] has advised me that he has been diagnosed as positive for the HIV virus in his body and may be symptomatic for the disease of Acquired Immune Deficiency Syndrome. Although I realize I am potentially risking my own life, I nonetheless desire to engage in sexual relations with the above-named individual."

Judge Gohmert admits that enforcing the ex-con's compliance will be impossible; instead, he said, reported violations would be investigated. "I'm not going to lock someone up in prison because they have AIDS," he said. "However, if a probationer is a threat to the community by not warning a person who is about to do something [that would endanger them]... then his or her probation will be revoked and he or she will go to jail."

The first-term judge, unopposed in the upcoming November election, said he has ordered unusual terms of probation before.

"I've required people to pay child support as a condition of probation," he said. "But also, when I see someone who has never had a relationship with his father and has none with his own children, I have required them to send letters to their children telling them how much they love them. And when I sentenced one woman with numerous children for welfare fraud, I could have prevented her from ever receiving benefits again. I didn't do that, but I said I would if she had any more children without a [marriage] partner."

He terms most of these conditions "common sense." Texas homosexual rights and AIDS activist groups have voiced their dismay at the order, but Judge Gohmert said he doesn't understand their motives. "I told the defendant I didn't care how he got [HIV] or what his sexual preference was. It is only right that he should warn his potential partners.... I can't understand how anyone who says they have compassion for people suffering from AIDS would not do anything readily possible to protect their friends and others from getting or spreading AIDS," he said. "This was done out of a sense of compassion. How could anyone say it's unfair and oppressive, when they've seen the horror of this disease? How could they not want to stop its spread?"