In a ruling that has further clouded legal guidelines for the criminalization of HIV, a Canadian judge acquitted an HIV-positive man of aggravated assault for engaging in unprotected receptive anal sex without disclosing his serostatus to his partner. Justice Lauri Ann Fenion ruled that the plaintiff, who remains HIV-negative and who was always the insertive partner during sex, was never at “significant risk of serious bodily harm” during his relationship with the accused. During the two-week trial in Vancouver, expert witness Dr. Richard Matthias, testified that the risk of infection for the insertive partner during both unprotected vaginal and anal sex was 0.04%, or 4 in 10,000. Fenlon came to her decision to acquit because of the low risk of infection and the fact that the unprotected sex was consensual.
And CN points out the biggest problem with prosecuting people with HIV who knowingly put others at risk:
There remains a key crux for all of these prosecutions, both in Canada and the U.S. That crux is knowledge of one's status. If you are HIV-positive but are unaware of your status, you cannot be prosecuted for transmitting the virus to a partner. Because of the criminalization of HIV in both countries, many fear getting tested. As Sean Strub points out in a recent blog entry, such laws are a terrible hindrance to effectively fighting this disease and its stigma: "They are terrible public health policy because ignorance of one's HIV status is the best legal defense. 'Take the test and risk arrest' is the message many at risk, who need to get tested, will ultimately hear."
Okay... then what do we do about people who knowingly and maliciously and repeatedly expose others to HIV? It's not enough, as I wrote yesterday, to throw up our hands and say, "it takes two to tango," and shift all of the blame to the young, duped, vulnerable, or foolish.
