Beware of news released on the day before a long weeked, it
tends to be controversial, unwanted, and politically divisive. A curious day to release a Supreme court
decision on HIV disclosure. Previously
the standard was an absolute need to disclose HIV status as such was considered
a risk for bodily harm, and persons could be found culpable of aggravated
sexual assault. This decision was based
on a 1998 court case involving transmission of HIV to a person subsequent to
the failure to disclose. Subsequent
decisions have expanded the definition to not require the standard of HIV
transmission, hence an absolute requirement for persons with HIV to disclose
their status. Putting aside the small
percentage of long term low viral HIV positive persons, this likely was a
reasonable decision at the time. The science standard was predominately one of reasonable
probability that transmission could occur and hence persons not informed in advance
of engaging in mutual consenting sexual relations were seen as having not had
sufficient information to make an informed choice.
Now, aggressive antiretroviral therapy can result in
reduction of viral particles to levels that are typically not detectable by
routine laboratory tests. Starting in
Switzerland, legislative or judicial decisions have slid towards recognizing
that transmission of HIV is highly unlikely in persons with negligible viral
loads and therefore the standard of informing partners might not be required.
However, it is known that persons with non-detectable viral
loads are unlikely to have been cured and still have the potential for resistance
development and recurrence of viral activity.
The Canadian courts have placed the second standard of still
requiring the use of a barrier method – a prudent action for persons engaging
in sexual activity who are not intimately familiar with each other.
The reaction of various HIV organizations has been
interesting. Many denouncing the Supreme
Court decision as failing to recognize the autonomy of someone carrying the HIV
virus. An odd reaction given the decreased
standard of protection that the courts will now be applying. Ultimately many would argue that sexual
relations are a buyer beware scenario. Negating the foundational communication
that forms the basis of relationships and making sex a recreational activity.
Even in other forms of recreational activity some forms of
protection are mandated, whether helmets for hockey players or automatic
release bindings for skiers. Football
helmet butting is resulting in serious punishments and use of performance
enhancing drugs are banned as of lifelong health protection.
The Supreme Court decision is likely reasonable given our
current knowledge and respects many of the Canadian values surrounding intimate
relations and sexual assault. Questions
will remain such as what is a reasonable level of proof of low viral loads, one
day? one month? one year? since the last viral load test. Some will question the need for and
importance of the barrier protection if viral loads are negligible, however
that standard was not tested in the court decision.
As for buyer beware mentality, in a society where power is
equitable distributed between all persons, choice is inherent in decision
making, and communication is transparent – perhaps there is an argument that
the buyer carries some burden of responsibility – but we live in an imperfect society
and depend on the courts to act in the best interests of all members. It is notable that the basis of the decision
is the test that the consenting individual would not have engaged in sexual intercourse
had they known the peson was HIV positive, in essence the HIV positive person
having committee fraud by withholding information that a reasonable person
would have used in being a buyer.
Read the full decision as written by Chief Just McLachlin herself at Supreme court
decision
No comments:
Post a Comment