B. Schmuhl walked into my office and had a seat.

After a brief exchange of pleasantries and without hesitation, B. Schmuhl began to share why she was meeting with me that day. B. Schmuhl is a resident of a sparsely populated town in New Jersey, but she is a relatively recent transplant to the Garden State, having lived most of her life in Tahlequah Oklahoma. B. Schmuhl is not a woman given over to dramatics; in fact, she is quite the opposite – short, almost to the point of being curt. This is even reflected in her fashion sense. A simple dress, a simple hat, a small clutch purse, and a pair of unadorned black shoes with a small heel. B. Schmuhl is the idyllic picture of a Midwest grandmother, genteel and simple, but that day she came to right a wrong and her otherwise grandmotherly face read all business.

“What can I do for you today Ms. Schmuhl?”

“I want to sue a driver who hit me and the New Jersey State Police. I have the driver’s name and number and his license plate. I have the Police Officer’s name, address, and badge number. When can we begin?”

“Well, tell me what happened…mam”

B. Schmuhl began by telling me that she was attempting to cross the street almost five blocks from her home when a man in a blue and white 1970 Mustang blew by her, clipping her left leg and knocking her to the ground. He stopped to check on her and subsequently called the police. B. Schmuhl was taken to the hospital where, to the doctor’s amazement, she was relatively unscathed. She suffered a bit of bruising and some soreness for a few days, but otherwise she was fine. I then asked her some questions about the events surrounding the accident. B. Schmuhl informed me that she was late picking up her Great-Granddaughter from school and was moving as fast as a seasoned citizen of her age could move. She glanced up at the light, saw that it was green for crossing traffic but moved into the crosswalk and briskly crossed the street. That is when she was hit.

I interrupted B. Schmuhl and asked her why she crossed against the light and her response was as simple as it was certain “I was in the crosswalk”. It did not matter that she was not paying attention to oncoming traffic or obeying the traffic laws, B. Schmuhl “was in the crosswalk”.

Which brings me to Truvada…

Truvada is a drug which is already approved for the treatment of HIV in infected patients. Truvada works by lowering the amount of virus circulating in an infected patient’s blood by blocking the activity of an enzyme that the virus needs to replicate. What is exciting about the drug is that clinical trials show that it can also protect uninfected, high-risk users from contracting the virus, provided they take the drug daily before and after exposure to the virus. In one study, queer men who took Truvada as prescribed, and (this is key) were advised about safer sex practices, saw their risk of infection lowered by up to 42%. Though it may seem trite to say, Truvada is not a cure.

Since the FDA signaled its approval of the use of Truvada as an oral prophylactic in 2012 the queer community, but more specifically, self-identifying gay and bisexual men have been divided over how they and the rest of the queer community should interpret and respond to this news. That division is not demarcated by strict “for and against” positions despite the demagoguery that has tended to plague this debate. In fact, the would be opposition to the widespread use of

Truvada as a prophylaxis can be summed up in a sound bite that carries only as much legitimacy as those ostensibly offended by it are willing to give it – Truvada is a party drug.

The now infamous statement uttered by Michael Weinstein of the Aids Healthcare Foundation (AHF) is touted as representative of the supposed opposition to Truvada when nothing could be further from the truth; there is no real and substantive opposition. After nearly thirty years of pro-condom messages, sex education, and quite a bit of prayer, Truvada is universally regarded as a welcomed step forward. What appears to be opposition is merely a cautious wait and see approach that is grounded in some political realities that cannot, or at least should not, be ignored. Even Mr. Weinstein’s statement, though inartful, does strike at concerns that the supposed opposition, of which I allegedly represent, believes is worth noting.

Without question, Truvada and its pharmaceutical progeny represent the most significant step forward in combatting the pandemic of HIV/AID in the queer community in quite some time, if ever. It is not a cure however, or even a universal protectorate of sorts, it can only ever be, at best, a half measure; and all half measures demand the fullest degree of sobriety when evaluating their effectiveness. The so called opposition to Truvada is more akin to a nuanced plea for recognition of the shortcomings of the drug and a call for a more mature cynicism; an as yet realized indispensable tool every bit as necessary to the fight against HIV/AID as the drug itself. This debate is vital because it impacts the lives of every queer man and for that reason the positions that are staked out must be carefully evaluated and not vilified and subsequently disregarded as sex negative or anti-progressive.

I therefore approach explaining a few of those position in the same way I set about explaining the legal realities of crossing against the green light to B. Schmuhl – carefully, rationally, and with more “yes ma’ms” than I can recall ever voicing in one sitting.

The first task of this article is to address the challenge posed by those that view Truvada as a replacement for the condom and in so doing advocate and encourage the negligent use of the drug. It is an argument that has been made before, and will no doubt be made again, but bears repeating because it is most salient to the discussion. Beyond the question of negligence though is what an environment of disinhibition portends for the community.

There is no denying that there is a decreased sensitivity to the threat of HIV/AID’s since the promise of Truvada was made public, but this hope of sorts has lucklessly produced an unintended consequence, the normalizing of risky behavior.

The last section of this article aims to articulate a cogent reason why the safer sex message, still a vital resource in this public health campaign, has sputtered to a near halt in the fight to stem new HIV reported cases.

Overall, the message of this article is simple: Truvada represents reason for optimism, the realization of a veritable silver lining, but it is not a cure and healthy skepticism suggests that it not be viewed as a silver bullet.

‘Crosswalks Work Best When You Use Them Correctly’

I stared directly at Ms. Schmuhl and summoned the courage to say to her that unfortunately, she was, at least part at fault in this case, she at least contributed to her own damages by being negligent herself. It is a rather easy concept to grasp. Even though Ms. Schmuhl used the crosswalk she used it negligently; her actions were at least thoughtless but at most reckless. She was careful in every other aspect of her life such that one could hardly claim that she was a careless person, but in this instance she behaved carelessly.

Even though the crosswalk defines the part of the street or road that a driver should not cross when a pedestrian is accessing it, that does not absolve the pedestrian of their obligation to make sure that the light is red – signaling that the traffic should stop – before entering the crosswalk. That is how the crosswalk was designed to function – with both of those requirements in mind.

Because Ms. Schmuhl violated that understanding her actions were negligent, they were reckless.

Which brings me to Truvada, again…

The Food and Drug Administration (FDA) and the manufacture of Truvada, Gilead, have stressed that Truvada is to be used as an adjunct to, and not a substitute for, the use of condoms. There is good reason for this. When used in tandem they represent the single most effective prophylactic barrier to HIV and STI’s, however, there is no denying that the roll out of PrEP and nPEP has been steeped in controversy as a sizable plurality of the queer community have willfully ignored these directions.

The decision to do so is sadly negligent and frankly reckless. The drug was designed to work most effectively when a person wears a condom, such that when a person does not wear one in conjunction with taking a pill they are decreasing the overall effectiveness of the prophylactic regimen. This in turn has the effect of decreasing an individual’s overall sexual safety to levels as yet to be quantified.

Truvada, while effective in combating HIV, has a metaphorical “blind spot” – it does not treat, cure, or prevent STI/STDs of any type. What is even more troubling are the number of more virulent and treatment resistant forms of STI/STDs that are being reported annually. Those two facts alone make adhering to the prescribed directions for use the minimum standard of care and anything deviating from that negligence.

Truvada is but one aspect of a more holistic and expansive public health policy that includes, but is not limited to, sex education, long trend studies, and community outreach. That public health policy, and Truvada itself, must be successful if the community is to keep its forward momentum toward eventual cure.

To do this the community must establish a sense of normativity not only around the drug itself but also around its proper usage. The more that people begin to associate the use of Truvada with condom usage the more legitimacy the policy will have. The more legitimacy it has the more successful the policy will be.

Negligent behavior then acts as a foil to that goal. Now, however, the community is confronted with what has become a countervailing behavior and message that predates this debate and the advent of Truvada itself – bare backing or the act of not wearing a condom while having sexual intercourse.

For some, bareback sex is an infrequent dalliance, often preceded by plausibly thoughtless passion. For others, bareback sex is a normal part of an otherwise healthy sex life. It is hard to argue to this group, or any other for that matter, that it is better to have sex wearing a latex appendage while taking a massed produced pharmaceutical every day.

Though the argument is grounded in a concern for health, what could be more ironic than telling a person that having sex the way they were designed to have sex – condomless – is somehow less acceptable than sex with all of this artificial accoutrement. Nevertheless this irony is life and more importantly it has to be the norm.

There is something fair about referring to willful condomless sex in the age of Truvada as negligent instead of something else more shameful. It is an acknowledgment of the fact that there is no intent on the part of those that have riskier sex to contract HIV or an STI.

Though they are engaging in unnecessarily risky behavior, the cause for doing so can be empathetically understood. The individuals who have bareback sex are not morally bankrupt nor are they seeking to subvert the safer sex message. The problem is that even without that intent it is still counterintuitive to a public policy that has to work in the absence of a cure.

No, we should not shame the individuals who take Truvada, that is asinine, but we are obliged by the severity of the situation to identify behavior that can lead to greater harm.

Crossing against traffic has inherent risks and negligently failing to follow the guidelines concerning Truvada’s use does as well. Both risks are manifestly unnecessary to take.

Michael Weinstein is the President of the American Healthcare Foundation (AHF), a non- profit organization that purports to provide medicine for, and advocate on behalf of, nearly a half million individuals in thirty six countries living with the disease.

It goes without saying then that part of the organization’s mission is to aid in the effort to find a cure for HIV/AIDS. That said, Michael Weinstein angered a number of individuals, when in an April 06, 2014 interview with the Associated Press he concluded that Truvada was a party drug. That the leader of an organization that claims to do what is described above would make such a statement seems at least irresponsible.

This comment however, both in and out of context, was patently inelegant but not without merit. I was more than a bit surprised by the reaction to his statement as I was researching this article. After all, what was the charge? Some alleged that he was being bigoted, but toward whom?

When I read his full statement in context he was taking issue with individuals who were championing the drug as an alternative to condom usage, which is condemnable because no health professional shares or encourages that position and because even with an “undetectable viral load” it is universally understood that there is still a risk of infection.

Could he have stated his positions with less glibness, yes, but the fact remains that he was not completely wrong. The most vocal proponents of the drug have all talked about it as a vehicle of liberation from the strict gospel of condom only sex. While it certainly provides another layer of protection, using the drug in violation of express direction is negligence and it is so blatantly willful to the point that it could be reasonably seen as a frivolous, or “party” like attitude regarding such a serious issue.

I am not a fan of Mr. Weinstein, nor am I an apologist for his leadership at the AIDS Health Foundation (AHF), indeed I have a short list of grievances all pertaining to questionable decisions he has made in the past. That notwithstanding, on this issue he has a point for the reasons stated. If Mr. Weinstein believes that Truvada is not an effective tool in fighting HIV/AIDS then he is being willfully blind and, respectfully, foolish to boot, but his statements concerning the troubling misuse of the drug are spot on.

Truvada works best, and is truly effective, when it is paired with condom usage and a regular testing and disclosure regimen.

It also helps to understand that this discussion of negligence is a discussion being had right now amongst my colleagues, defense attorneys who have already begun to explore the possibility of litigation if and when the first Truvada users tests HIV positive. They represent pharmaceutical companies and their strategy is rather straight forward as you might expect – explore their background for any sort of behavior that would hint at negligence and show that it was not the ineffectiveness of the drug, but the wanton disregard for the warnings that lead to the plaintiff’s ill-fated circumstance.

Though I am sure that many would consider the person suing to be completely liable for failing to heed the warning concerning the use of Truvada, the penultimate take away is that there is no exception morally and legally for failing to use the drug as it was intended.

The Path of Least Resistance – Of Seatbelts, Anti-Lock Brakes, Crosswalks and Truvada

Trying to break the tension that filled the dialogue between me and B. Schmuhl I said half- jokingly “Crosswalks just work better when you use them correctly.”

B. Schmuhl pursed her lips at me, sat back in her chair, and stared through me for about ten seconds. She then responded with a point that she felt was both relevant and compelling. “You know, there were at least three other people who did what I did. I told the police officer that and he looked at me as if I was speaking another language.”

I knew what B. Shmuhl was implying with her statement. That jay walking is the way of the road, that it was as normal as speeding through a yellow light or double parking.

B. Schmuhl was asking the police officer, and by extension me, to recognize the political reality that jay walking is normalized behavior. In short, everyone jaywalks and it cannot be a crime if everyone else is doing it.

At that moment I wanted to respond with that age old rhetorical line that parents the world over have used when confronted with such an argument from their children – and if everyone jumped off a bridge are you going to jump too. The obvious answer was no, although I wished in the past that I just said yes once to see what my parents might say, particularly my mother.

I decided against that ultimately out of respect for my elder and potential client and for due regard for the significance of the point that B. Schmuhl was trying to make.

Consider this with Truvada…

Advocates for Truvada’s wide spread use acknowledge that everyone should take the pill in conjunction with wearing a condom, but they also make the realist argument that there are people who are not going to wear the condom regardless of the admonishment.

It is at this point that I should argue that that means that there is more work to be done in strengthening the safer sex message, but the reality is that they have a point. Truvada exists precisely for this reason, for individuals, who long before its invention, made the decision that they were not going to wear condoms.

For a select few, not wearing a condom is an act of defiance, a political statement of sorts, but for the overwhelming majority of individuals that use Truvada as a replacement for condoms there is something less political and more ‘human’ about the decision.

Is it Similar to Seatbealts?…

A study conducted in 1994 found that despite the messaging concerning seatbelt use that there was an increase in the number of driving accidents. A similar study conducted in New York, Denmark, and Germany found that even with the creation and addition of anti-lock brakes as standard on most motor vehicles the number of rear-end impact collisions were mounting instead of decreasing.

What could explain the ironic inverse relationship that existed between increases to driver safety and increase in motor vehicle accidents? One would expect that with the increase to driver safety that there would be less accidents and fatalities, not more.

The phenomena has been referred to in professional circles as Risk Homeostasis.

Risk Homeostasis is a rather controversial theory in psychology, sociology and economics that holds that individuals tend to adjust their behavior according to the perceived degree of threat presented. As one would expect, individuals are more cautious when they perceive the threat to be great and less cautious when they perceive it to be minimal. In the two studies they found that individuals took far more risks while driving seat belted.

The conclusion was that the drivers likely behaved this way because they believed that the seatbelt would protect them in the event of an accident. Similarly, drivers with anti-lock brakes tended to tailgate more often than they did before.

The conclusion was that drivers must believe that they could stop on a dime if the car in front of them were to brake all of a sudden. In other words, drivers perceive the threat posed by a car accident to be slight in light of technology like seatbelts and anti-lock brakes.

To use the parlance of economics, drivers were prone to consume the benefits of this improved technology rather than save them.

Even B. Schmuhl had a moment of risk homeostasis when she perceived the crosswalk to be sufficient protection against a possible run in with a vehicle despite the fact that she was crossing against the light. Though her perception proved incorrect, it nonetheless explains, at least in part, why she undertook such reckless behavior.

Is such the case with AIDS?

Truvada and other anti-retroviral have made the specter of dying due to complications from AIDS less of a concern than it was when the disease was first discovered. It is no longer perceived as a death threat but a manageable chronic disease. Individuals who have the disease look healthy and are living well into their senior years.

With this new reality has come less of a stigma associated with the disease, with one prominent urban HIV/AID activist proclaiming on his blog that “with Truvada AIDS is like the common cold, yeah I have it, but I am not going to die from it.” While the sentiment is for the most part true, it treats as trivial something far too serious.

As a result of PrEP and nPEP, there is a sense that many of the traditional safer sex methods have become outmoded. This cocktail of drugs has allowed users to consume the benefits of the drug rather than saving it by taking the pill as a part of an improved safer sex regimen. In some corners of the community Truvada is hailed as a virtual cure, with many men mistakenly believing that because the drug can reduce a patients detectable viral load they consequently cannot transmit the disease.

This thinking is due to the type of unjustified insouciance that tends to follow the misunderstanding of what Truvada is capable of doing.

What drivers failed to realize is that seatbelts and antilock brakes are meant to aid in overall safety. Neither apparatus, on its own, was meant to be a substitute for careful, alert, prudent driving. In the same way Truvada was never meant to be a substitute for the condom, regular testing, prudent selections in sexual partners, and full disclosure of health status.

It is inconvenient to follow through with that kind of regimen when a simpler one can be employed to presumably achieve the same end. The human psyche will always travels the path of least resistance and so it did not take any degree of clairvoyance to see that it would occur in this instance as well.

This is a political reality that we must accept, but it does not mean that it is without consequence. The consequence is disinhibition, or the belief that Truvada is a license to engage in riskier behavior because the risk of HIV transmission is lowered.

Before Truvada a person might be apt to ask their sexual partner their HIV status, and even demand that they provide test results. Now with Truvada, it is highly likely that they would forego that precaution relying too heavily on the drug to protect them.

This risky behavior is directly linked to the perception that the disease is no longer as threatening as it once was; which is a fateful consequence of misperception. The obvious retort is that Truvada was, negligence aside, made for this purpose; to protect individuals even when they undertake risky behavior such as that.

This would of course be true up to a certain percentage depending on whose math you rely upon in determining the effectiveness of the drug, however, that says nothing about the culture that it undoubtedly will create, if it has not already.

B. Schmuhl referenced the fact that everyone jaywalks, and that jaywalking is such a common occurrence that no one could be reasonably singled out for do it. Jaywalking has become the norm such that individuals undertake the infraction with great impunity, sometimes almost daring motorist to hit them with their vehicle.

Disappointingly, that offhand culture became the proverbial chicken come home to roost for B. Schmuhl as this burgeoning culture could be for countless queer men.

I will enthusiastically concede that those who have taken the time to research the drug and use it as it was intended are certainly not the concern of this article, but the effect of the very existence of Truvada combined with the increasingly visible and explicit rejection of condom usage foments a false sense of security.

Though not necessarily widespread, the collective ideation of a libertine sexual culture without consequence fosters the idea that it is alright to participate in this risky behavior even if, and this is most disturbing, all those participating are not taking Truvada.

This is what is concerning for those of us who are urging strict adherence. A waning sense of wariness regarding the disease is being misinterpreted as a warrant to engage in needlessly reckless behavior. When health policy must confront that sort of juggernaut it is unlikely to produce the desired effect; something that B. Schmuhl could attest to, reluctantly.

Back in the Day – Gay Cultural Legacies and when it was Safe to Cross Streets at Will

The condom, according to historians, can be traced as far back in history, accurately, to approximately the 15th Century. From that time to present the condom was always viewed primarily, if not expressly, as a form of contraceptive.

That is the reason why many historians believe that condoms fell out of favor with the collapse of the Roman Empire and the Rise of the Holy Roman Empire. In fact, in every culture and civilization where condoms were used the primary reason for use was family planning. The condom enjoys a distinctly heterosexual history and the act of putting one on has been interpreted as a heteronormative act.

In fact, when most gay men are introduced to condoms contraception is the first concern of the conversation. The transmission of HIV and STIs are secondary concerns. This troubling relationship with condoms is often complicated by the fact that safe sex education is not more inclusive and can be rather prohibitive if you are gay and closeted.

There is little question that most young men will not be so bold as to ask their teacher, a school nurse (if one is available) let alone their parents about the consequences of having condomless gay sex. This sort of exclusion from the safer sex conversation is part of a heritage of heterosexism that has had the disastrous impact of not making the condom a part of gay sex culture in a way that would have made confronting the AIDS crisis in its inception a bit more manageable.

I am not suggesting that the work that Larry Kramer and other tireless activists have devoted to this cause is in vein, but there must be some recognition of the fact that the condom for queer men went from being a contraceptive, something of little use to them, to a life saver, ironically, a reminder of the life threatening disease it could protect against.

There was never a middle ground, a point where the condom could be viewed as a principally legitimate aspect of responsible sexual behavior. This became a cultural legacy in the gay community and the reality is that it continues to be a barrier to meaningful sex education amongst queer youth.

I must tread lightly when proposing such an idea because cultural legacies are somewhat tricky theories. If it relies too heavily upon generalization then it can easily be dismissed as bigotry. I raise this possibility though in hopes of reinvigorating the safer sex message and reestablishing the much maligned bonafide of the condom itself.

It is still the gold standard prophylactic because it is still the only effective way to guard against the transmission of HIV and STD/STI.

If activists can find a way to endear the condom to the queer community instead of introducing it at the end of a conversation whose theme is “wrap it up or die”, it will be possible then to better stem the tide of the diseases with the help of Truvada.

B. Schmuhl told me that when she was younger she remembered a time when cars drove much slower and men were quick to brake for a lady. There was a time that she could remember where jaywalking was not jaywalking because everyone had respect for each other – pedestrian and driver.

I am not sure that I agree with what I am sure is Ms. Schmuhl’s revision of history, but it is her perspective and it the legacy of that time period that caused her to step out into the cross walk that day. Sometimes legacy can prove costly.

I do not oppose the use of Truvada, in fact, I have been encouraging individuals to research and use the drug if they are sexually active and in engage in either frequent, spontaneous or risky sexual behavior.

My audience is both queer and straight and there is general agreement that taking the drug is worthwhile.

As for me, I am a virgin, so safer sex for me is purely an academic venture at this point in my life, however, if and when I do decide to be sexually active I am certainly going to consider and possibly use Truvada.

I do not doubt the effectiveness of the drug I just see it for what it is – a silver lining, not a silver bullet.

Postscript on B. Schmuhl

Ms. Schmuhl decided that she wanted to pursue the case, despite my advice, but only against the driver. We took the matter to court and to my surprise she did walk away with a judgment.

I uncovered that the driver had been driving about ten miles over the speed limit when he hit my client. This was enough for the Judge to declare that even though B. Schmuhl was partly at fault the driver was more so.

She collected a tidy sum of money for the case but I did not collect a fee. B. Schmuhl’s eldest great granddaughter was looking forward to college but it was going to be tough financially to send her.

I chalked the case up to pro bono work, my mitzvah for the day.