Wednesday, August 11, 2010

HIV Infections and the Law

Shared from our friend Josh:


Regarding the discussion on non-disclosure of HIV+ status. This is a case from Australia.

Most prosecutions for infections have been in the US and Canada, a trend that drew condemnations in Vienna 2010, but this is an increasing trend. Prosecutions have involved both hetero and MSM.

All of these cases so far involve people intentionally lying about their + status, or tampering with condoms to reduce their effectiveness and increase risk of transmission.

The concerns that have been raised include scaring people from getting tested (ie. if you know you're + and infect someone, you could go to prison). Another issue though is that a court could rule that all unsafe sex carries strict liability. In other words, not knowing your status is not enough of a defense.

In other words, the + partner is responsible for ANY infection resulting from unsafe sex if he knew or "ought to have known" there was a risk of transmission. Just as individuals do not have the right to consent to be stabbed or seriously injured, a court could rule that the right to private, consensual sex (ie. Lawrence v. Texas 2003) does not extend to transmission of a dangerous pathogen.

Taken to its logical conclusion, I fear that these well-intentioned measures aimed at a few reckless, or even callous individuals, could be used by a right-winger on the bench to all but re-criminalize gay sex, or sex between / with HIV+ individuals.

In the end, it proves that each individual must rely on themselves for protection. While trust is great, latex is better.

--Josh

http://news.smh.com.au/breaking-news-national/man-with-hiv-exposed-others-court-told-20100805-11jv2.html

1 comments:

Edwin J Bernard said...

Thanks for writing about this, Josh - it's a subject that I care a lot about. Your point about shared responsiblity is a good one, and one that the criminal law simply doesn't get.
One thing. You wrote: "All of these cases so far involve people intentionally lying about their + status, or tampering with condoms to reduce their effectiveness and increase risk of transmission."
That's simply not true. Non-disclosure is often about assuming the other person is the same HIV status; or being in total denial that you have HIV, or the risk of unprotected sex; or being unable or unwilling to 'out' oneself as HIV-positive (and where using condoms would create suspicion). In addition, I am aware of only a couple of cases (out of more than 600) that involved 'tampering' with condoms (as is alleged in the Stuart MacDonald case that you link to).
If you or your readers would like to know more, I have just produced a resource for NAM on this issue, with an international focus, available at: http://www.aidsmap.com/law
I also have been blogging about it for the past three years at http://criminalhivtransmission.blogspot.com

All the best,
Edwin

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