Volume 92, Issue 35
Thursday, November 5, 1998
a little bit louder now
Disclosing unhealthy criminal behaviour
By Holly Lake
Should people infected with HIV be obligated by law to disclose their status to their sexual partners?
The Supreme Court of Canada has spoken on this issue and its answer is "yes." A recent decision states people with HIV must not have unprotected sex without first telling their partner. Otherwise, they risk facing criminal sanctions.
The decision arose from the case of Henry Cuerrier, a British Columbia resident, who had been charged with two counts of aggravated assault. Cuerrier had unprotected sex with two women more than 100 times over a two-year period and failed to tell either of the women he had tested positive for HIV.
The court found that Cuerrier's failure to disclose his condition nullified any consent his partners may have given to sex.
In his decision, Justice Peter Cory detailed the serious risk of infection and death for partners of HIV-positive individuals, saying the potentially fatal consequences are far graver than many other actions prohibited by the Criminal Code. Further, explained Cory, the risks of infection are so devastating, there is a real and urgent need to provide a measure of protection for those at risk.
Not everyone agrees, however. A debate has arisen as to whether or not the criminal law, by way of this Supreme Court decision, has a role to play in deterring those with HIV from jeopardizing the lives of others.
Dan Wilson, a safer sex coordinator for the AIDS Committee of London, says involvement of the criminal law can only have a negative effect. He fears people will be given a false sense of security.
"If a partner says they don't have HIV, then the Supreme Court says they don't have HIV and we know that is not the case," he says. "I'm worried that some people will give up the responsibility to protect themselves."
Wini Holland, a Western law professor, says the court's decision targets a particular group of people who are aware they are HIV positive and are continuing to have sex with others without disclosing this information.
"There is nothing inappropriate about using the criminal law to deal with the very small minority of people who choose to engage in [activities of] this manner," she says. "The vast majority of people with HIV are responsible about their sexual activity."
Holland does not see why there should not be an obligation to disclose that information which fundamentally affects the physical relationship of two people.
Myrna Fisk, a public health nurse at the London Middlesex Health Unit, agrees with Holland, suggesting criminal law does have a role to play, but only as a last resort.
"Unfortunately it's a crude tool, but as public health officials, it is sometimes the only tool we have left."
She refers to occasions where individuals with HIV have been counselled, warned and even given orders under the Health Protection Act about their behaviour, yet remain unwilling or unable to change their behaviour. Like Holland, Fisk stresses she is referring to a very small minority of people. It is her hope the possibility of criminal sanctions will give more weight to the counselling efforts of public health officials.
Wilson's concern is not for those people who have HIV, as he says most people who have the disease are honest about disclosing that information to their partners, but for those who do not know their HIV status.
"What worries me is a lot of people feel healthy, look healthy and are healthy and so they do not know that they have HIV." He says this paves the way for unknowingly passing the disease onto others.
This reasoning is why many groups and organizations argue against the Supreme Court decision and stress that ultimately it is up to individuals to protect themselves.
Fisk does, however, emphasize there are different levels of risk involved in sexual relations. She says there is a relative risk which anyone engaging in sexual activity accepts and may take steps to protect themselves against then there is an absolute risk. She says people should have a right to choose whether they are going to expose themselves to infection or not.
"It is fine to say that everyone should use protection all the time," she says. "But accidents do happen. Condoms are only safer, they are not absolute."
There are also fears the decision will drive people who suspect they have HIV underground. Wilson says knowing there is criminal liability involved would discourage some people from getting tested at all. He also points out the many psychological hurdles a person must overcome to have themselves tested under normal circumstances. The possibility of facing criminal sanctions is seen as another barrier which individuals in this situation simply don't need.
"It's a way of saying that you've got to have a red letter 'A' on your forehead if you find out you are HIV positive and with all of the stigma around about HIV and AIDS, I think some people are uncomfortable disclosing their status to everybody," Wilson says.
Holland doesn't buy this argument. She says it is unrealistic to suggest that some vague threat of criminal sanctions down the road will discourage someone from getting tested.
"I think that if someone is ill, they will go and have a test carried out so that they can get treatment as soon as possible."
Despite the debate surrounding the issue, there seems to be a common concern for women who find themselves in this situation. "The politics of sex are a power struggle and it's not always a situation where there is an equal relationship or where women have power or control," Fisk says.
Wilson echoes Fisk's concern about the relationships many women find themselves in.
"There is often a power relationship, often there is economic dependency and of course, there are physical differences between men and women. For some women, asking a partner about his HIV status or asking him to wear a condom, might put them physically at risk."
For these reasons, Fisk says, there are a lot of challenges women face when negotiating safer sex that men don't usually encounter, challenges which put them at additional risk.
Ralf Jurgens, executive director of the Canadian HIV/AIDS Legal Network in Montreal, says there have been studies done which show women often fail to disclose their HIV status to their partners because of the fear they will react with violence.
"For those women, the decision [to disclose] is an even more difficult one because they now have a legal obligation to do so. They are criminals if they don't disclose their status to their partners right away." He says prior to this decision, a woman would have been counselled and helped through the situation.
Jurgens says taking precautions is the most important thing, but people should begin to work on the actual disclosure. However, he says not everyone has to disclose.
"If a person takes every precaution, then I would say that they have fulfilled their responsibility to their partner. It is not just the responsibility of the person living with HIV, it is the responsibility of both parties involved."
He says at this point, disclosure could actually be counterproductive for many people. "There is really a disincentive for people who previously did not disclose, because now all of a sudden they are criminals because they did not disclose in the past."
The impact of this decision still remains to be seen. In the meantime, Holland doesn't think the decision will have a deterrent effect on people's behaviour. She suspects if someone is determined on having sex without disclosing their HIV-positive status, they will continue to do so. However, she says if someone is caught, at least now they can be detained and prevented from infecting others even if it is only for a short period of time.
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