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Supreme Court fans flames of HIV epidemic

Supreme Court fans flames of HIV epidemic

Mainstream media coverage of last Friday’s Supreme Court decision kicked off with a blizzard of confusion and misinformation. So if you think that there was a great ruling that is going to protect people from HIV and from fear and prejudice-driven prosecutions, sorry, you turned off the TV too soon.
 
In fact, the decision limits the defence available to those of us charged with not disclosing our status. The Manitoba Court of Appeals had previously ruled that it was nobody’s business if we were poz as long as our viral load was undetectable or if we used condoms. The Supreme Court is now demanding we do both at the same time.
 
Before, we were required to disclose if there was a “significant risk” of transmission. The new wording is we have to out ourselves when there is a “realistic possibility” of transmission.
 
If you have no idea what that means, welcome to the club.
 
The only clarification the Supremes offered was for straight people fucking in missionary position. If that involved both condoms and a low viral load, transmission wasn’t a “realistic possibility.” But for gay guys who don’t do much of that? Who knows? Oral sex? Who knows? Lesbians? Your guess is as good as mine.
 
So in terms of clarity, the Supreme Court bombed again. We can look forward to more queer prosecutions in order to clarify whether our various sexual behaviours fall within a “realistic possibility” of HIV transmission or not.
 
Despite the fact that the Quebec case before them was about an HIV-positive woman, the judges’ decision reflected little consideration of the issues poz women face. It’s much easier for a man who is positive to put on a condom than it is for a positive woman to make sure the man who is fucking her puts on a condom. But if she doesn’t, she could face life imprisonment for “raping” him and registration as a sex offender when she gets out — even if her viral load was undetectable and she was virtually uninfectious. We can look forward to more prosecutions of women under the new regime.
 
What about people who, for a variety of reasons, aren’t on meds or can’t get regular viral load tests — because of poverty, living in a remote area, immigration issues or because their doctors have told them they didn’t need to yet? How are they going to prove they have a low viral load? Before, as long as they had used a condom, they had a defence. Now it’s open season. So we can look forward to more prosecutions of the homeless, sex workers, minorities, aboriginals and those of us who don’t yet need meds.
 
The court had an opportunity to do three important things with this ruling. First was to reject the provinces’ argument that every poz person must disclose no matter what the risk of transmission. Thanks in large part to the intervention of a coalition of community groups, they didn’t go quite as far as the provinces wanted. So that piece could have been worse. But they also had an opportunity to send a clear message challenging fear and prejudice by listening to scientific evidence about how hard it is to transmit HIV. Instead, they fed those fears and are encouraging a whole new round of prosecutions. Finally, they could have listened to community research and expert opinion and taken into account how criminalization is fanning the flames of the epidemic. Instead, they dismissed this evidence and ignored the recent United Nations report that detailed the dangers of broad criminalization.
 
No poz person asked to go to the Supreme Court. This happened on the initiative of the governments of Manitoba and Quebec, trying to overturn previous acquittals. Our fight to limit the ongoing damage of criminalization once more falls back to the provincial level. Although the feds write the law and the Supreme Court interprets it, the provinces “administer” justice. For the last two years the Ontario Working Group on Criminal Law and HIV Exposure has been pushing the attorney general of Ontario to establish guidelines for prosecutors to try to limit prosecutions. Crown prosecutors are supposed to consider the “public interest” before dragging anyone through the courts. Can anyone seriously maintain that throwing more HIV-positive people in jail, for activities that don’t transmit HIV or pose any significant risk to anyone, is in the public interest?
 
Driving people with HIV underground from fear of criminalization only fans the flames of the epidemic. And that’s certainly in nobody’s interest.
  

Comments

Knowing HIV+s have a greater responsibility
@ MIKE: “I believe that all adults are responsible for their own safety when having sex...” I tried to be responsible for my own safety… But the condom that I put on him —he took it off behind my back !! And he was HIV+ but he never told me. I wanted to hunt him down and kill him. I did calm down eventually, but I still wonder how many others did he infect? How many others like him are out there? That old out of date old “slogan” about protecting yourself is only half the equation for a successful society. ***WE ARE ALL RESPONSIBLE FOR OTHERS. That is the other half of the equation.*** If someone knows that he/she is HIV+ and could pass on a lifelong disease to someone, then that person has the greater responsibility. We get HIV from people who have HIV. The low viral load statistics don't matter if you are the one infected. Silence no longer equals DEATH. But it could equal a lifetime of suffering in various ways. Why inflict that on even one more person? Fear of HIV or any other disease is the best protection we have against disease. Fear produces inhibitions and self imposed restrictions which prevent possibly harmful behaviour. People who have no inhibitions nor deferred gratification and behave in a way that causes harm to others should be dealt with by the law. The Supreme Court decision was fair. Reasonable people believe that.
Safe sex is everyone's responsibility
Joe: I can answer you. I believe that all adults are responsible for their own safety when having sex and thus the onus is on all sexually active adults to assume their partner is HIV positive until they know for certain otherwise. To place the onus solely on the HIV positive person to disclose is ludicrous because too many factors come into play to make that likely not to happen every time. Being drunk, being afraid to disclose in case the partner leaves, etc etc The Supreme Court has made an idiotic decision in this case. It has opened the door to numerous unwarranted prosecutions, to the spread of HIV, to the persecution of marginalized peoples and has made itself look like a bunch of prudish sex repressed old fuddy duddies who did not even properly study the issue before ruling on it. I cannot believe that if they studied the issue objectively they would have ever come to such a decision. The Supreme Court has lost all my respect. They are a bunch of sex repressed, out of touch, prudish old foggies.
How about the relevant case of positoid gay men?
Well, if McCaskell is concerned that the rulings pertain solely to the use case of “straight people fucking in missionary position,” then I am anxious to hear his proposed prosecutorial guidelines for the use case that is of greatest relevance to the actual community he belongs to – namely, known-positive men “fucking” known-negative men or men of unknown status without a condom. Or does he believe that should never be against the law? It would be nice to receive a straight answer on that question. Let me put a kettle on, because I suspect I’ll be waiting a while.
Birds of a feather...
puff, you really should join AIDS Action Now or the PWA Foundation. They could really help you with your arguments on xtra.ca.
Brent....
Your statements about HIV+ people is just false, hateful, discriminatory and misleading and there is NOT a shred of evidence to support such a stupid notion. There may be some Psychopaths out there but this has NOTHING to do with being HIV+. I see you. As to the charter of "equality" there is NOTHING equal about the SCOC ruling, nothing!
A lack of care by AIDS activists
It’s disturbing that so many AIDS activists and HIV-positive people care so little for their sexual partners who are HIV-negative. Fortunately, the Supreme Court of Canada thinks otherwise. The Supreme Court ruled that if an HIV-positive person barebacks an HIV-negative person without disclosing their HIV status, that failure to disclose will constitute fraud vitiating consent to sexual relations under section 265(3)(c) of the Criminal Code and therefore an act of sexual assault. In paragraph 48 of the decision, Chief Justice McLachlin wrote: (quote) In keeping with the Charter values of equality and autonomy, we now see sexual assault not only as a crime associated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being. To engage in sexual acts without the consent of another person is to treat him or her as an object and negate his or her human dignity. Although the Charter is not directly engaged, the values that animate it must be taken into account in interpreting s. 265(3)(c) of the Criminal Code (end of quote). Source: http://scc.lexum.org/en/2012/2012scc47/2012scc47.html
Fanning the Flames
IS in some people's best interests Tim. Please stop calling this "prosecution" when in fact it is persecution. Change the narrative. Also, what does it mean when people out themselves as HIV+? It means threats of prison, loss of employment, loss of home, loss of friends and family. The list is endless on what coming out as HIV+ means, none of it is good. This is not an issue of legality or prosecution it is PERSECUTION. It is intentional, barbaric and this truth couldn't be clearer. Good article, it seems you're starting to get what this truly is.
Lack of evidence on "fanning the flames"
Various AIDS activist groups affiliated with QuAIA’s Tim McCaskell intervened in the Mabior case before the Supreme Court of Canada. It appears that the AIDS activists did a very poor job in presenting some of their arguments in court. For example, in paragraph 59 of the decision that was released on Friday, Chief Justice McLachlin dealt with their arguments on fanning the flames: (quote) Some interveners challenge the use of the criminal law in the case of HIV on the ground that it may deter people from seeking treatment or disclosing their condition, thereby increasing the health risk to the carrier and those he has sex with. On the record before us, I cannot accept this argument. The only evidence was studies presented by interveners suggesting that criminalization probably acts as a deterrent to HIV testing: see e.g. M.A. Wainberg, Criminalizing HIV transmission may be a mistake (2009), 180 C.M.A.J. 688. Other studies suggest little difference in reporting rates in states that criminalized and did not criminalize behaviour: S. Burris, et al., Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial (2007), 39 Ariz. St. L.J. 467, at p. 501. The conclusions in these studies are tentative, and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain (end of quote). I had to remove quotation marks used in the above passage since they don’t work well in the comment boxes on xtra.ca. A copy of the full decision is at http://scc.lexum.org/en/2012/2012scc47/2012scc47.html
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