Tuesday, August 14, 2012

Who gets to define risk? The problem with #HIV activism

In response to Ottawa Citizen article: Risk assessment

As a queer-identified activist, I tend to keep my feelings about the criminal status of HIV non-disclosure more private than my thoughts on most other issues, but what kind of social issues blogger would I be if I shied away from contention? So here goes.

Firstly, I acknowledge that the legal and social models that construct HIV are often in conflict. I understand that the stigmatization of HIV creates a disincentive for both testing and disclosure. Activists struggle to reconcile the desire to include HIV+ persons equally into our society while also preventing the spread of HIV.

The legal doctrine vilifying HIV non-disclosure is fairly simple and largely accepted as the norm. A crime requires a guilty act and a guilty intent. Under these parameters a person who has tested positive for HIV has a legal requirement to inform their sexual partners because of the “significant” level of risk that partner is subjected to. To fail to do so is criminally negligent.

Some argue that the advances in medical treatments have reduced the level of risk in some sexual practices. Legally, this translates to into an argument that if there is no longer “significant” risk, then there is no victim and no crime.

Enter conundrum. Who gets to define risk? Is risk nit-picked details of viral load and which practices were performed, or do partners get to define risk as being robbed of informed consent?

I personally hold the belief that information does not exist to be censored. For the same reason I could never support a law banning sex-specific abortion, I have to support the criminal aspects of HIV non-disclosure. Depriving people of information about their bodies, or their sexual experiences, is not rational basis on which to make decisions.

To suggest that HIV has no place in a criminal court is to naively put faith in humanity; it is to suggest that HIV cannot be insidiously passed to another. This is a known fallacy; we need only look to Rwanda where HIV and rape are used as a cheap means of biological warfare to realize that the intent of some transmissions is both real and criminal.

HIV is definitively a public health issue that our governments are failing to ameliorate; our communities have real needs for support services and prevention outreach. This reality, however, does not refute the simultaneous criminal reality of HIV.

Unfortunately, the most effective means of HIV prevention is still fear, even if the condition is no longer a death sentence. I know that the sanctity of my bodily integrity is why I employ safer sex practices and get tested.

To conclude, I assert that the complexities of HIV are not best delineated by the Supreme Court of Canada. A small group of legal experts cannot asses the full social impact of HIV on our country; elected MPs need to make this decision on behalf of Canadians and democratically clarify the legal status of HIV non-disclosure.

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