Monday, 8 October 2012
Sex, Fraud, and Assault. The Supreme court decision on HIV disclosure for persons with low viral loads
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