In the last few years, despite scant empirical support, the media have identified as a primary reason for high HIV rates among black women the phenomenon of black men who live on the "down low" (or DL). Such men are said to maintain primary romantic relationships with women while engaging in secret sexual liaisons with men. Drawing on a perpetrator-victim framework, this discourse pits "deviant" black men who have sex with men (MSM) against "respectable" black women and the broader black community. Yet such media discourse tends to erase structural components that produce high HIV rates and place the blame solely on individuals ripped from their broader social context. By contrast, this Article offers a structural analysis of the issue to reveal governmental and social mechanisms that marginalize black women and black MSM. First, government policies such as mass incarceration shrink the pool of black male partners for black women and black MSM, which impacts individual decision making. Second, black women and black MSM struggle against "romantic segregation," which assumes that blacks must mate with blacks and fails to examine nonblack men's relative disinterest in black women and black MSM. Third, the Centers for Disease Control's early framing of HIV/AIDS as a "gay disease" disadvantaged many black women and nongay-identified black MSM who did not recognize that they were at risk.

Analyzing discourse on the DL is important because it may have implications for criminal and public health law. In response to fears that HIV-positive people recklessly spread disease, more than half the states have passed criminal laws aimed at HIV-positive people who expose sexual partners to a risk of HIV transmission. Like the DL discourse, these laws understand HIV transmission through a crude lens of perpetrators and victims. Actual dynamics in sexual relationships tend to be far more complex and resistant to regulation by the criminal law, which helps explain the minimal number of prosecutions brought under these laws. Instead of relying on a criminal law model to reduce HIV transmission, I call for structural solutions, which may channel individual sexual behavior in productive ways, without directly regulating it.

 

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