Canada's Top Court Issues Sensible Ruling On HIV Disclosure

Comments

1
Dan, please provide us a little of more of your own take on this, in light of some of the comments in the CBC news article.
2
They SHOULD tell their partners anyway. I wouldn't want to have protected sex with someone and only LATER find out that we'd have to use a condom every single time or risk transmitting a secondarily deadly infection. Common courtesy, guys.
That said, the court made the right call.
3
This is so so wrong on some levels.

I can see not disclosing to employers, or neighbors, but people you have sex with?

This is like not immunizing your kids and hoping everyone else immunizes them. And then being shocked when we get really bad diseases.
4
So much for the principle of "informed consent."
5
@2 and @4: exactly. It is, in essence, a decision that a sick person can withhold information about being infected with a communicable disease from someone who has every right in the world to decline sex with someone with a disease that is communicable by sex. This is a terrible and deeply offensive decision.

In essence, the SCC has decided that a legal onus isn't necessary, only a moral one, forgetting that law codes and courts -- including Supreme Courts -- only exist because moral codes very often don't discourage behaviour that may hurt other people.

6
Basically, the decision turns on criminal law situations. I find it weird that the same Court which held that
.... one can NEVERNEVERNEVER give pre-consent to sleep sex because it isn't real consent, and so your lover becomes an instant rapist for doing something you said was okay
... also says that you aren't guilty of sexual assault if you hide your HIV status from a partner, perhaps even if the partner has informed you that they decline to have sex with someone who is HIV positive.

The fellow interviewed on CBC is an asshole, every bit as dismissive of the rights of others as some rightwing douchebag. He states that the SCC has said that "if you have HIV then you're a potential criminal". No, asswipe, the issue is whether you give a partner data that they're entitled to, not the data that you don't think that they're entitled to have.
7
Dan, you are VERY wrong on this one. In the end, the only thing that matters is informed consent, and, yes, anything else is or can be sexual assault. What constitutes "informed" rests with party granting the consent, not seeking it. If a person's bodily integrity means anything it must mean the right to decide whether or not they are going to risk infection with a potentially fatal disease. People on the right have slithered along for years on the notion that "your right to have the final say on your own body stops where my ideology or my beliefs begin"; are you about to stoop to that moral level?

It sucks to have HIV. But it isn't, to use your phrase, a get-out-of-being-human-free card.
8
HIV transmission rates are exceedingly low, even for the high-risk sexual activity (i.e. unprotected receptive sex with a known positive partner). Also, it's not 1984 anymore, you guys. It's ridiculous in this day and age to treat HIV-positive people as criminals and pariahs even when they are taking appropriate and well established safety precautions with their sexual partners.
9
Is that the issue, #6, or is the issue personal responsibility? It's one thing when a partner lies and says "it's ok, I'm negative." It's a whole other thing when two people have an anonymous or a near-anonymous hook-up and both people make a decision not to use protection.

Look, we should obviously promote shared responsibility: if you have a sexually transmissible infection you're morally obligated to tell your sex partners, and if you're having sex you should protect yourself (and your partners) as much as possible. But what the LAW should say is, if you're asked, you must tell.
10
blip @8: That's got exactly dick to do with the rights of the person from whom the information is withheld. There is nothing in your comment or Dan's approval of the SCC decision that even begins to address the fundamental right of the uninfected party to full disclosure in order to be able to give or withhold informed consent.

Even if we take as a given that the risk of infection within those established parameters is remote just how much "remote" the other party is willing to accept is their decision, not yours.
11
@10 If the uninfected partner asks and the positive partner lies, that is a problem. But we are talking about a scenario where nobody asks and nobody discloses and everybody takes precautions to prevent HIV/STD transmission. It makes no sense to treat this as a criminal transaction.
12
@10 Also, "yours?"
13
They should define what they mean by "low." "Low to the point of undetectable" should definitely count. I like that they draw the distinction between those who use condoms and those who do not.
14
@13: Even with undetectable viral load and condoms, there's still a small risk of transmission. I'm not sure it's up to a judge to decide what level of risk a person is willing to consent to.
15
I'm sure most of us here are in favor of laying your cards on the table and being honest with partners. But I think we all also understand that there's ALWAYS risk involved in sex, and that we should all ALWAYS proceed as if our partner is HIV-positive anyway. What's being overlooked here is the STIGMA that is still associated with HIV these days, and how most people are completely ignorant of the actual facts. If your viral load is undetectable, then the odds that you're going to pass on HIV are virtually NILL. And yes, you should have the right to decide if you want to take that VIRTUALLY NILL chance yourself ... but if you don't, then you SHOULDN'T BE HAVING SEX with someone whose status you could possibly be unsure of.

ALL SEX is risky. Sex with someone who has an undetectable viral load is not any more risky than any other sex you have. If you're going to be having sex without asking about stauses and without using protection, then you HAVE to take some of the blame here. These people cannot keep being treated like criminals and rapists while the other parties take a typical sexual risk and then come out looking like victims. (And yes, a lot of these cases are brought by people who didn't even contract HIV from their partners, but they're just angry and "emotionally damaged" by finding out later there was the possible risk that they should have expected in the first place.)
16
According to the CDC
22% of sexually active homosexual men have,
and spread,
HIV.
But that is just a beginning.
We can go MUCH higher.
Rulings like this,
and attitudes like Danny's,
will see us top 30% by the end of the decade.
17
"most people are completely ignorant of the actual facts. If your viral load is undetectable, then the odds that you're going to pass on HIV are virtually NIL"

No. You might want to check your "actual facts." The CDC estimates that an undetectable viral load leads to a 60-80% reduction in transmission risk. Very, very far from nil.
18
blip @11: "precautions to prevent HIV/STD transmission".
dictionary.com: "Precaution: a measure taken in advance to avert possible evil or to secure good results".

You will note the absence of guarantees there. Bad things happen despite precautions. Maybe not often, but they do. And because they do people should have the right to evaluate their own risk. That's the medical argument.

Moreover, neither you nor Dan has arsed themselves to answer the moral argument: a person's right to control their own bodies. There is no moral right whatsoever for a person infected with a virus that can lead to a fatal disease to withhold that information from a sexual partner. None. Anything else is just "waaah, I wanna get laid so I'll play the math on this".
19
Did you know Danny sits on a pile of dead faggots every day when he goes to work?

Yeah.

It makes for a bumpy ride but it gets his rocks off.

Homosexual men get HIV at 56X (FIFTY SIX TIMES) the rate of normal Americans.

Half of infected homosexual men don't know they are infected.

Danny is aware of these studies and yet he actively encourages homosexuals to do what Danny knows will infect them with HIV.

Danny sits on a pile of dead faggots.
20
" The CDC estimates that an undetectable viral load leads to a 60-80% reduction in transmission risk. Very, very far from nil."

I think that you're wasting your time, BABH. misterheck thinks that an infected person's right to avoid "stigma" trumps an uninfected person's right to a potentially life-or-death decision over their own body. So, if somebody dies, that's okay, because no fee-fees were hurt.
21
This is not great.

Speaking as a lawyer, all this does now is open the door to endless parsing of what it means to use a condom and what it means to have a low viral load. I will tell you that this is the kind of thing that makes law professors rub their hands in glee as they prepare their exams.

I could spin a ton of different scenarios that hinge on how the condom was used, what the viral load was, what the person thought the viral load was and what the person thought about proper condom use. I won't because although I find that sort of stuff interesting, most normal people don't.

The key is that they have taken an easy to understand bright line rule and replaced it with a muddle. The other key is that I want to make the decisions about what the acceptable level of risk is for myself, I don't want others making it for me based on their analysis of information that is not available to me.

This is especially true when some people will interpret this ruling as saying that the "High Court says I don't have to tell my partners." This may not be a fair interpretation, but it is one that people will make.
22
Are there similar laws about not disclosing status of other STD's, including hepatitis?
23
You know how you reduce stigma? By coming out of the HIV closet without fear or shame.

Positive people have a responsibility to the positive community, as well as to the negative community, in favor of disclosing their status.
24
@20 The moral question is subjective -- it is also not the issue here -- however I think positive people should disclose their status under any circumstance. I also think failing to do so if not asked directly should not be a criminal offense as long they use condoms or other such preventative measures. If they outright lie that is a different story altogether. This is not what we are talking about.

Anyway, let's say a person is deeply concerned about their partner's HIV status but proceeds to fuck them without asking about it. Why is this person not responsible for their own behavior in this scenario but the HIV-positive person is, to the point of being a criminal, even if they use condoms?
25
"Are there similar laws about not disclosing status of other STD's, including hepatitis?" Don't know. Should be.

"The key is that they have taken an easy to understand bright line rule and replaced it with a muddle."
This is an increasingly problematic habit of Canadian appellate courts.
26
Actually, here's the issue.
If the sex has a negligible risk of transmitting HIV, there's no legal obligation to tell the uninfected party. But suppose the condom breaks halfway through? The risk becomes non-negligible, and someone's life may have been endangered. The infected person needs to inform his/her partner precisely because shit happens. It's like sitting down with someone to gaze dreamily into his/her eyes and neglecting to mention that you have laser retinas. What if your sunglasses fall off?
27
" Why is this person not responsible for their own behavior in this scenario but the HIV-positive person is, to the point of being a criminal, even if they use condoms?"

Why don't you take out the HIV language, and replace it with a young woman who decides to take a risk and gets raped, and then see if you can ask the same question without feeling ashamed of yourself.

No, the moral question isn't subjective and it's that sort of squishy moral relativism that drives many people insane. Not telling someone that you have an STD that could kill them and then having sex with them is objectively morally wrong, and is very much the question. Not letting somebody make an informed decision about what may be their own life and death is also objectively morally wrong, and is also very much the question.
28
"If the sex has a negligible risk of transmitting HIV, there's no legal obligation to tell the uninfected party. But suppose the condom breaks halfway through? The risk becomes non-negligible"

The risk was not negligible *from the beginning*, precisely because there's a risk of the condom breaking, or being put on wrong, or ... etc. Hence the duty to disclose *before* sex.
29
And let's also call out the hypocrisy here, shall we? If a GOP legislature had brought in a measure that said OB/Gyn doctors no longer had to go through a given sterilization process for instruments for vaginal exams because if (if) everything went fine there'd be nearly no risk of a potentially fatal infection but those doctors weren't obliged to tell the woman of the risk, then everybody here (and not just some or most) would be screaming blue murder.
30
@21: This is especially true when some people will interpret this ruling as saying that the "High Court says I don't have to tell my partners." This may not be a fair interpretation, but it is one that people will make.

You know, that thought may now be the most disturbing part for me. I'd thank you for the thought, but it's not really a nice one. By making it a grey area, they have made that misinterpretation easier. That, in turn, may well increase risk.

I wholeheartedly agree with combating the unfair stigma associated with HIV, but this sets a dangerous precedent. I felt suddenly (and very momentarily) thankful for the balance of our court at the moment... and that just doesn't happen very often. *shudder*
31
@27 The question is not if this behavior is moral, but whether it is criminal.

You keep overlooking the part where a person has a responsibility to his/herself to ask their partner their HIV status if they care about it, and their partner has a legal/moral obligation to answer honestly. If one fails to ask this question but consents to sex anyway, they are responsible for their own behavior.
32
"You keep overlooking the part ..."

Because I choose to focus on the right of an innocent and uninfected person to not fucking die because of the selfishness of another. What you choose to focus on is whether you can tag them for some of the blame if they do.
33
We are assuming the uninfected party doesn't ask about status here. What if they do ask and the HIV positive person doesn't disclose, because their viral load is low?

Also, lying does not just mean speaking untruthfully--you can lie by omission.

I've had STD scares and I've been completely honest every time--trust me, it is uncomfortable and sometimes the other party doesn't want to take the risk. That sucks, but I'd rather be rejected than lie to someone because I actually care about the people I want to have sex with and respect them as autonomous human beings, just as I hope they respect me. I do not think that my desire trumps another person's health or right to informed consent.

No one is entitled to sex.

RE: stigma--I think we need to get over the idea that we shouldn't talk with our partners about sex before we engage in it, no matter how brief the relationship. Anecdata via advice columns everywhere show that even long term couples hesitate to directly discuss sexual satisfaction, let alone sexual health and safety. I would guess that most people do not disclose, which is a good assumption on which to base your sexual safety practices. If more people discuss sex, both safety and preferences, openly and directly, people would realize how common most STDs are (they don't just happen to "other people") and the stigma would lessen for both the safety talk as well as satisfaction/kinks.

My $0.02.

In the words of Salt-n-Pepa: "Let's talk about sex, baby!"
34
@32 Where "some of the blame" = "taking responsibility for their own behavior."

It is perfectly reasonable to expect someone to ask their sexual partner’s STD status if their willingness to consent hinges on it, and to legally obligate their partners to answer honestly.
35
"The question is not if this behavior is moral, but whether it is criminal."

In Canada, having HIV and not telling somebody that you plan to fuck is criminal. And clearly so, until nine well-tailored shoes decided to get all vaguey-vaguey. Learned Hand did a superb job of showing just how foolish that decision was.
36
What is the definition of "disclose" under the current ruling? Is it only about proactively saying so yourself? If your partner asks, can you lie, prevaricate, change the subject?

Were I the despotic ruler of the planet, I would make the criminal penalties be about the harm caused, period. I don't put a lot of stock in the idea that "it's rape because if I had known, I never would have AGREED to have sex with you." Fraud, probably, rape no; there was an agreement to go forward with the sex, not coercion. So I don't like the idea of charging someone with sexual assault for failing to disclose something material. I would charge that as fraud. Particularly if it's something material but ultimately non-harmful (e.g., I never would have had sex with you had I known you weren't actually an investment banker, like you said at the bar ) then all that could be charged is fraud, not assault.

On the other hand, if you know you are infected with something potentially life-threatening, and you knowingly engage in behavior that passes that infection to me, you have put my life and health at very specific harm and risk of further harm. I would charge that as attempted murder. (That would be on top of the fraud charge as per above.) Again, separate harms, separate charges, separate penalties.

But what do I know. I'm just some fool with a computer and an Internet connection.
37
A view corresponding to mine:
http://fullcomment.nationalpost.com/2012…

A view corresponding to Dan's:
http://fullcomment.nationalpost.com/2012…
38
@36 The problem with laws that mandate disclosure is it discourages people from getting tested. If they are positive but don't know it then no crime has been committed, but their partners are still at risk.
40
@38: The legal concept addressing that is "wilful ignorance".

And, frankly, the kind of people that you describe are better jailed than not.

Truth be told, I've heard blip's sort of thing before from the excellent people who help street addicts: their one blind side is that they want to talk about everything and everybody except holding their client base either morally or legally responsible for any of their choices or wrongdoing.
41
@40 Unless Canada also mandates HIV testing (which they might? I don't live in Canada), "willfull ignorance" of one's HIV status is legal behavior.
42
Where I live, in Sweden, the left and a few different organizations and lobbyists (including RFSU - National Association for Sexuality Education) has been trying to remove the demand for disclosure regarding STI's and sex, but thankfully they have so far failed. In Sweden there's a law regulating the handling of deadly and communicable deceases, there are about 60 deceases in the law, 30 of which are deemed dangerous to the public, and if you have one of the deceases on the short list you have to inform anyone that could be at risk, this includes your healthcare professionals, dentist and sex partners. The law is based on the idea that we all have a responsibility to minimize danger to the public, I can't see how that's a bad thing. Also in the law it says that if you believe you have a decease on the list you have to get tested for it (which is free, and so is the treatment), but if you know that you might have the decease and don't get tested and endanger others that's also illegal. I'm not entirely certain but I believe the law in Canada is similar, and like I said, I can't see how it's a bad thing. Yes, the stigma of being HIV-positive sucks, the fact that infected people are eventually going to die from it also sucks because no matter how much better treatments have gotten they are still only stalling the inevitable. But this whole trend of wanting to remove people's obligation to inform, just to minimize the stigma, scares me. The first priority has to be to ensure the safety of the public, which includes making sure they know what risks they are taking. Then we can talk stigma.
43
42

damn.

that's pretty fucking reasonable and enlightened policy.

we didn't know Republicans ran Sweden.....
44
42

And we note that the HIV rate among Swedish adults is 1/6 (one sixth.....) that of the United States.
45
42

And the point of your post is clear:

Danny is a Fucking Murdering Bastard.
46
42

In Fact

Danny will not be Happy

until

Each and Every last faggot in America

catches a deadly and communicable decease.
47
@41:
Wilful ignorance is a contextual doctrine, blip. There's no mandatory STD testing in Canada. However, if the Crown (i.e. the DA) could establish that one knew one was likely to be or possibly infected, and then didn't do the test (or avoided it), then the doctrine might apply.

Given the muddle that the SCC has produced with its decision (a judgment which Star columnist Heather Mallick drily and accurately notes is "proof that judges don't get out much") it might be easier to prove wilful blindness because the defendant in such a case would know that he was infected. However, the more likely result is the one that Learned Hand posed: the Supremes have given a ton of excuses and obfuscation options to shitbags who don't disclose that they're HIV positive and are now trying to weasel out of criminal sanction for their selfishness.

48
I agree with Friendstastegood (a lovely name, by the way) and venomlash.

I'm not aware of there being any criminalization of not disclosing in French law. The way I manage the HIV risk is, for each and every new partner, both of us get HIV tested before any sex happens (free and anonymous testing takes a week here), we show the results to each other - and then we happily proceed to condom sex.

Of course that means no random hookups. But I can't take the risk of becoming HIV-positive, with me single-handedly raising 3 kids. And guys who are not interested enough in having sex with me to go get tested and wait a week to get their result - they don't interest me.

I've had condom sex with responsible seropositive people - knowing they are seropositive means upping the protection level from sensible (condom for PIV, no semen in my mouth during blowjobs) to paranoid (condom for everything & dental dam for pussy licking).

I don't think that my desire to protect my own health is stigmatizing to HIV-positive people ; I think it's helpful. Knowing one's own HIV status helps getting the medical care one needs.
49
Two hypotheticals, to challenge seeker6079's assertion that non-disclosure of HIV status is equivalent to assault because it negates informed consent.

1. In the early days of the AIDS epidemic, before anyone knew what was going on (let alone had developed a test), what about the people who got infected then? Were they denied "the right to control their own bodies" by their sex partners? Were they denied informed consent? This is not an abstract or irrelevant question: it's quite possible that another deadly STD like HIV could arise, with no tests for it and no way of knowing who has it until it's quite widespread. Innocents could once again be at risk from dying from a disease that literally no one has information about.

2. What if a similar law were passed about herpes -- which granted, isn't fatal, but is life-long and incurable, and is often asymptomatic, and is not routinely tested for? Would it only be the responsibility of those who know they are infected to disclose? What is the obligation for people who have no reason to believe they are infected, but who might be?

This is hypothetical as a legal question of disclosure, but is directly relevant to people's lives as an ethical one. I have never heard anyone claim that people who might have herpes disclose. And yet, why should there be an obligation for people who know they have herpes to disclose but not for people who don't know their status? You can catch herpes from someone who doesn't know that they have it, after all.

(Perhaps a stronger example would be HPV, some strains of which are asymptomatic until they give you cancer.)

I think my opinion is pretty clear here: informed consent is the acknowledgement that sex, especially with someone you don't know well, has risks including the risk of disease transmission. The risk is innate to sex, not to sex with someone definitively known to be infected. The idea that not being upfront about HIV status is essentially a type of rape, only makes sense if you assume a disease-free status is the default state of humankind and that people who are infected are "other". This othering of people who are known to be infected is, itself, quite unethical.
50
@43-46: Wow... talk about missing the point. Just in case you are genuinely curious I am happy to inform you that the Swedish conservative right is so far left of the USA Democrats that they can't even be found on the same political map. Swedish politics range from social liberal to communist. The reason we have much lower rates of STI's is because of competent sexual education in all schools and free condoms for everyone under 25. Same sex marriage is legal and strangely enough that hasn't made opposite sex marriage implode or STI's spike and people are gay at the exact same rate as before it was legal.

@48 Thank you, I rather like your moniker too.
51
50

We're not.

52
@49:
(1) The "informed" in informed consent is contingent on the level of information actually available. In 1980, there was no duty to disclose HIV status because there was no such thing as an HIV status. By 1990, there was no excuse for not telling your sex partners that you knew you had a potentially fatal sexually transmitted disease.

(2) People who know they have herpes have a moral duty to disclose their status to people they might transmit it to. Herpes is less potentially harmful, so might not merit a legal duty to disclose.

(3) Whether or not there should be a legal duty to disclose HIV status, I think it's a close question on which reasonable people can disagree. It seems pretty obvious to me that there's a moral duty, though, and I don't see how anyone could argue otherwise. If your partner doesn't ask your status, they are acting irresponsibly, but that's no excuse for you to act irresponsibly too.

(4) I hope you would agree that if Person A asks Person B's status, and Person B lies in order to get laid, that that's clearly a sexual assault.
53
50

Perhaps the patient was already dead....

In 1960 10% of Swedish babies were born outside marriage,

in 2010 55% were.

Sweden seems to have become one big BabyMomma Paradise....

54
@53: Sweden's out-of-wedlock birth rate, you say? Well, it was at 11.3% in 1960, and rose sharply during the 1970s, rising steadily until it leveled off in the late 1990s. It was 54.7% in 1998, and seems not to have changed much in the 14 years since.
Now, Sweden only legalized gay marriage in 2009, after allowing civil unions in 1995. And the story is the same in Norway too. Civil unions in 1993, and gay marriage in 2009. And their out-of-wedlock birth rate? It skyrocketed from 3.7% in 1960 to 47.6% in 1995, but is only about 55% today also. Heck, Denmark shows an even stronger plateau effect.
So gay marriage DOESN'T cause out-of-wedlock birth rates to go up. In fact, the evidence suggests it causes them to go down. You were saying?

(Just so you know I'm not blowing smoke the way you usually do, go to the 70th page of this document.
55
*should be "causes them to stop going up"
56
54

Junior.

Go ask your momma what "Perhaps the patient was already dead...." means.

Like we've said before, legalizing homosexual 'marriage' is mostly an indication of how far Traditional Heterosexual Marriage has deteriorated.
57
@56: If legal gay marriage is a sign of a decline in the quality of marriage as evidenced by high divorce and out-of-wedlock birth rates...
...why do states like Massachusetts and Iowa that allow gay marriage have such low rates of said undesirable events? Riddle me that, wise guy.
58
57

...and skyrocketing rates of unmarried cohabitation.

Gay marriage was imposed on those states by judges.
(soon recalled judges in Iowa....)

What is your assertion;
that advocates of homosexual 'marriage' are staunch supporters
of the institution of Marriage?

Do they call for measures to make divorce more difficult to obtain?
Do they call for civil or criminal sanctions on adultery?
Do they condemn premarital sex that leads to out-of-wedlock child birth?
Do they condemn couples who live together without marriage?

We haven't seen any of that.....

What is your assertion?

We see Danny advocating adultery,
embracing living together out of marriage,
advocating extramarital and premarital sex.

Homosexual 'marriage' is just another rest stop on our merry skip to Gommorah.....
59
58

btw high rates of cohabitation reduce divorce rates.

because you have to actually get married before you can divorce....

and thus looking only at divorce rates gives an incomplete picture of the social mayhem

(similar to how Obama's Official "unemployment" rate ignores those who have lost hope and misses by 6-7%....)

Unwed cohabitators break up much more often than marrieds divorce (which itself happens plenty enough) casting the children cursed to be in those social units in more turmoil.

Which is why 98% of the cretins featured in "Every Child Deserves..." are unwed.

(haven't seen that one much lately-
perhaps Danny has finally caught on that it is not about heterosexuality
but is about the depravity of unwed cohabitation.....)
60
@59: Okay, it's better for couples to be married than simply cohabiting. Why are you trying to stop people from getting married, then?
61
60

No one here is doing anything like that.......
62
@32 "Because I choose to focus on the right of an innocent and uninfected person to not fucking die because of the selfishness of another."

If I don't want to risk the possibility of having sex with an HIV+ person, then I shouldn't have sex. Blaming other people is whining.

Sex is important. That means that people lie about it and lie to get it. Refusing to acknowledge the implications of these facts is willful ignorance.

I never asked anyone's STD status because it's rude to put someone in a position where they might be tempted to lie and it's stupid to make my own health dependent on someone else's commitment to the facts. I just assumed all my random hookups had herpes and were HIV+ and proceeded accordingly.

If I see an escort and offer a substantial bonus for condomless sex, I'm being an idiot and an asshole. I'm asking someone else to risk their health for money. (Right, like the escort believes me when I say I don't have anything.) If the escort accepts, that suggests two things: 1) they are already HIV+ and figure they have nothing to lose; or 2) they are desperate and I am exploiting them. It's enough that I pay for my stupidity and assholishness by becoming infected with something. Why criminalize the escort for withholding information that was implicit in the transaction? It makes no sense.
63
@blip
You really are an "AWESOME PERSON"
64
didn't read past #2 because he said what I'd say and I pretty know how the rest of the comments are going to read.

Of course partners should tell their sex partners any material pertinent information about their HIV status. This is their moral obligation.

However, we're talking about if someone has a negligible viral count through medication AND uses a condom, if the don't disclose, should they be charged with RAPE.

No, they shouldn't. Yes, they're a bit of a scum-bag.
65
Is Dan pulling a Mudede here?
66
@62:
Apparently condoms never break in your world, so it's obviously preferable to this one.

You criminalize it because, if the person withholds the information and something goes wrong somebody could fucking die. The person on the other end of the transaction has the right to have the choice to decline even protected sex with an infected person. If that basic bit of human dignity escapes you then you're pretty morally pathetic.

Is there a degree of acceptance of risk and personal responsibility? Sure, but those are moral and good sense arguments. Women who walk down dark alleys or trust their new boyfriends make such decisions for which they are responsible all the time, but that doesn't impact on their legal right to not be raped, and the state's interest in putting rapists in jail.
67
No, seeker 6079. You don’t criminalize it because not everybody knows they are infected. Sexually active people must assume that their partners are infected and could fucking kill them, and make their decisions accordingly.
68
Alison Cummins:
Criminal Law 101: a criminal conviction requires intent, "mens rea". If the infecter is ignorant that they were infected (and not wilfully ignorant [see @47] then there is no crime, only a tragedy.

If they knew, or ought to have known, and didn't disclose then, yes, they are criminals. The fact that their victim should have known better is irrelevant, a hard-won legal and sensible reality that feminists won for sexual assault cases.
69
I'd only add that in the eagerness to blame the potential infectee for being infected by a liar there has been zero emphasis on the moral impetus on everyone who is sexually active to get themselves checked, especially before a new partner. It's not difficult.
70
There is no law on the books that criminalizes not disclosing to your dentist, or the nurse who updates your tetanus shot, or the surgeon who puts you back together after you've been it by a car. The person who cleans up the OR after a surgery is not told whether the patient was HIV+. All these people use "universal precautions" and so should you.

And no, not disclosing is *not* criminal in Canada under all conditions. You think it should be, but it isn't.

If you would feel better if all HIV+ people got their status tatooed on their foreheads so that you could decide whether you want to interact with them or not, I'm afraid you're out of luck.
71
We seem to have a distressing number of folks here whose attitude regarding the HIV+ who infect partners from whom they withhold that information is to tell the partner, "yeah, well, you took your chances, now shut up while I give bus fare to the guy that infected you so he can do it again, because, hey, sucks to be you, doesn't it"?

Such a touching lot of compassion amongst some oh-so-progressive people.
72
we don't charge the guy who lies about his vasectomy and impregnates someone with rape.
73
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