Barbara Kay: The Supreme Court’s sensible ruling on HIV/AIDS
Friday October 5th, 2012
Canada’s Supreme Court clarified a section of the country’s sex laws Friday, ruling that failure to disclose one’s HIV-positive status to a sexual partner won’t automatically lead to a criminal conviction. I approve of that decision.
My colleague Matt Gurney took a different tack last February, when he wrote: “None of us should have the right to decide for someone else whether they are exposed to a potentially deadly disease. The only person qualified to make that kind of decision is the person accepting the risk. If they are denied the opportunity, they have not consented. That’s a crime.”
If you change the word “deadly” to “consequential” (which is more or less the correct word to use for HIV nowadays, since it is medically manageable), just about any communicable sexual condition should also be considered a crime if it is undisclosed. Chlamydia can result in infertility, for example, and other STDs can have other life-altering repercussions. Criminalizing them all would fill our prisons with morally odious people trying to maximize their sexual opportunities through implied or real deception. But the punishment would be disproportionate to the crime.
And let’s not forget that there are several different ways to acquire HIV. If Gurney’s perspective were enshrined in law, we would have some sticky wickets to deal with. For as I wrote in a previous column, “From 1980-2007 at least 237 Canadian children were perinatally infected with AIDS, and 2,358 diagnosed as HIV-positive.
“According to Dr. Catherine Hankins, a McGill University AIDS specialist, ‘Many women resume sex and take new lovers after they find out about their condition … doctors who ordered HIV-positive women not to have children are finding that the women eventually go ahead anyway, even though the risk of HIV transmission increases as the woman’s infection wears on.’”
Not one prosecution or effective restraint has ever been imposed on those irresponsible mothers. Is that really the road proponents of criminalization want to go down? Because logic demands that they should. Who is the greater victim? The adult woman who knowingly takes a risk, or the unborn child who is incapable of withholding consent?
This is a sensible ruling. Failure to disclose one’s health status to a sexual partner may be merely negligent or even maliciously motivated, but it should not put the morally miscreant in prison. HIV is not a weapon in the sense of a knife or a gun. If a potential sex partner asks about health status and the HIV carrier lies, that is fraud, and the fraudster should be sued for damages.
The moral of the story is, one should always insist on a condom in casual sexual relations, whether one knows the health status of a new partner or not. In adult matters like these, where casual sex with little-known men is by its very nature a risky affair, caveat emptor is the rule.