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Drunken jail sex and HIV hysteria

Drunken jail sex and HIV hysteria

Lawsuit against allegedly poz woman should be thrown out of court
Let's say you decide to have a few drinks. Actually, let's say you slug them back all day long. Are you responsible for the decisions you make in that state? Or is everyone else around you — everyone but you — to blame?

These are the kinds of questions we as a community ought to consider in the face of the latest legal development in the case of two women who allegedly had drunken sex in a Kamloops jail cell on Aug 18.

Both women were thrown in the drunk tank for public intoxication. They met there and apparently shared more than a penchant for pints — namely, mutual sexual attraction. They became intimate with one another in the cell, in what an RCMP press release described as "what appeared to be consensual sexual contact." Seven male employees of the jail — four RCMP officers, three employees of the City of Kamloops — allegedly watched the encounter over closed-circuit TV cameras.

News coverage of the incident included unconfirmed reports that one of the two women "may" have HIV. So now the second woman has filed a lawsuit in BC Supreme Court seeking damages from her jailhouse paramour, the men who peeped on them, the provincial and federal governments and the City of Kamloops.

Describing herself as "horrified and scared and mad," the woman told the Kamloops Daily News that she feared for her health: "It was the worst thing in the world that could have possibly happened to me. Every day is a struggle."

Her legal advisor, Victoria personal-injury lawyer Erik Magraken, told the paper, "This is all about the duty to protect. If the RCMP has someone in their custody, they have a duty to protect that individual from harm. If harm comes from ignoring that duty, damages can follow."

According to Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, this is the first time to her knowledge that HIV nondisclosure has been implicated in a legal case involving lesbian sex.

Contacted by Xtra, Magraken refused to specify if the harm he was referring to is, in fact, HIV. He says he's speaking "very generally" to the notion of "any kind of harm." But according to the Daily News, Magraken did argue that "if they fail to disclose they have HIV, that is an aggravated assault and there can be no consent in those circumstances."

Well yes, criminal charges have been been laid on that basis more than once, but what's been affirmed by the courts is slightly different. To date, we know that HIV disclosure is required in instances where there is actually a serious risk of grevious bodily harm. (BC Crown spokesperson Neil MacKenzie told Xtra the police have submitted an investigative file on the case, but there has been no decision yet as to whether any charges will be laid, or against whom.)

The thing is, there's a difference between serious risk and virtually no risk. Health Canada describes the risk of woman-to-woman HIV transmission as "unlikely," and after more than two decades of tracking, the Centers for Disease Control in the US have no confirmed cases of lesbian HIV transmission in their databases.

Lesbian AIDS advocate Cindy Patton famously encapsulated safer-sex strategies back in the 1980s in this way: "Don't get semen in your anus or vagina."

Since neither woman in this case has been identified as trans, we can probably assume that this risk did not come into play.

The case "shows how much fear, prejudice and ignorance around HIV and the risks of transmission can easily divert people's attention from what really matters - the issue of people's security and privacy while in custody," says Kazatchkine.

She points to a BC Supreme Court case from 2003 where a woman was awarded $15,000 in damages after being stuck with a syringe in a cab in Vancouver's Downtown Eastside. In that case, the plaintiff claimed she was plagued with fear of becoming HIV-positive for seven years after the incident, which is not medically plausible unless she subsequently got HIV from some other activity.

Do lesbian and bi women need to care about HIV? Are alcohol or drug use relevant to sexual decision-making and the notion of consent? Do people who use substances to excess deserve support and understanding? Do prisoners have a right to dignity while behind bars? The answer to all these questions is a resounding yes.

It's important to discuss these matters — but we can do that in ways that are reasonable and that don't stigmatize people with HIV.

We can be fairly certain no HIV was transmitted in the jail cell that night. If the RCMP's original account is any indication, it appears two people who were equally willing - and equally intoxicated - engaged in erotic play, that neither took undue advantage of the other, and no one was genuinely placed at significant risk of any harm as a result of their tryst.

If anything, both women should receive counselling and support about their public substance abuse to help protect them from risk of actual sexual violence. That would be horrible and criminal - but there's no evidence to suggest that's what happened here. That reading of the facts of this case only makes sense if your view of all people with HIV is to see them as predatory and intrinsically dangerous.

I feel for the woman who's suing. It's a shame she has not received appropriate counselling to understand that she's likely not in any medical danger. Misinformation about HIV risk is unfortunately common in Canadian society — but that lack of awareness and education is not the personal responsibility of the other woman.

I'm also sure the complainant has experienced significant duress from the media scrutiny and the violation of privacy that spawned it. In fact, she shares that unfair emotional burden in common with the other woman - the one who "may" have HIV. Indeed, maybe the most reasonable course of action would be for the two women to engage in a joint legal action instead.

They already demonstrated a willingness to unite and come together that one night in August - perhaps it's time for them to do so again. 

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Comments

RE: Gary
The idea that no person should go to jail for non-disclosure is like saying no person should go to jail for having sex. It is fine on the surface until you look at all of the situations which could unfold. Following that logic rape would be legal. Since we know rape is morally reprehensible, not all cases of having sex are fully legal. Society has imposed conditions on which sex is ok in order to ensure a protection from those who would harm society. Non-disclosure to me is a similar story where either extreme is wrong. Holding hiv+ or other infected people to higher standards for safe sex / transmission isn't right. On the other hand, there are recorded examples of hiv+ people going on missions to infect as many people as they could. The law needs to find a balance where those rare cases of people intentionally trying to infect the public are arrested and punished for the damage they do to society. On the other side, the law needs to have compassion for pos folks and clear rules of what is ok, not ok, and requires disclosure. Trying to flight disclosure laws totally is counter productive simply because the police need the tools to protect society for the one or two people a year who go on a mission to spread infections intentionally. I would suggest to those who oppose criminalization that they would be more successful pushing for laws that prevent people from being charged for serious crimes like sexual assault and defining the exact duties of all parties (not just the pos person).
Non disclosure
This jailing of people for not disclosing their status is idiotic. I have never heard of shut bullshit since the witchhunts. No one is going to jail for giving me hiv. I accept full responsibility for becoming positive. Everyone knows HIV exists and therefore they should be legally responsible to protect themselves. If they are jailing people for hiv non disclosure is should go for all stds. It is really time everyone took care of themselves and stopped crying victim. And who knows if it was disclosed or not , surely it comes down to one persons word against another's. I tell everyone , but what is to stop someone from saying I didnt. that is why I have not had sex in two years. I am not going to let some vandictive queen ruin my life.
More AIDS BS
Thanks for the smart analysis. I found this article through Bilerico.com. Good stuff.
boring
The best thing about Shawn Syms typing in Xtra is that you never have to actually read it. He says the same thing over and over on the same handful of topics like an android. Most boring PC-whipped ninny nannyscold Xtra-ite around. Yawn Syms, 10 years behind the Western trends.
Re
Hi Jason. To your specific questions about the content of this piece, the woman's lawyer was interviewed (see the sentence that begins "Contacted by Xtra, Magraken..."), and offered "no comment" in response to most questions. At the time this article was being researched, we were unable to access a copy of the court documents, despite my editor contacting the Victoria BC-based Court Registry. Reviewing and excerpting it would have added to the article I'm sure, but that isn't always possible. I've worked on articles for Xtra where I had several months for research and interviews, and others like this one where there was a desire for a quick turnaround in order to respond to a news issue in a timely way. I stand behind Xtra's approach to this incident in this article and a previous one (see link in paragraph 2) because I believe it provides a perspective on the issues raised by the case that few others have articulated. That's one of the benefits to advocacy journalism, to my thinking.
Thank you for your reply
Shawn, thank you for taking the time to read and even reply to what your readers are saying. I must say that act alone reminds me of the involved journalism I've long missed. I looked back and I see your referred to "Analysis" in the title. The definition of "Analysis" suggests independent review. Here is one definition I found *** a philosophical method of exhibiting complex concepts or propositions as compounds or functions of more basic ones. ***. I would suggest making editorial/opinion articles clear by calling them that since Analysis suggests non-bias review or examination. On the topic of how I feel Xtra is going the wrong way comes with how they changed their reporting model. In the old Ottawa print version of Xtra we used to see journalistic stories where at least an effort was made to find all sides of the story and an attempt to convey all sides was made. That story would often contain honest admissions of where bias may occur (I don't dispute your bias points, but I do think good writers are intelligent enough to disclose their potential bias). On top of the journalistic stories we then saw multiple editorial or opinion pieces based on those stories, often with opposing views. That approach gave people the chance to form their own opinions and then an opportunity to see part of the debate and then comment on and take part in that debate. The idea of removing the effort towards a balanced news source and skipping right to the debate leads to one sided media influence over opinions and stifles conversation. For example, was an attempt made to contact the lawyer of the complainant for comment? Did you example a copy of the public court documents? These are investigative items I would expect from a news source. Where is the opposing opinion from Xtra or the other side of this story? In this case the media is controlling the information. I feel opinions and editorials should come in response to balanced journalism, not as a
What do we actually know here?
Dan, I'm not going to defend the RCMP or pretend that I have access to their videotape. There are a number of complicated challenges for anyone trying to make sense of this story. There are a couple things we do know though. First, we know the risk of woman-to-woman sexual HIV transmission is next to nil. Second, we know that both women were publicly intoxicated enough to be arrested. In her interview with the Kamloops Daily News, the woman filing the lawsuit said she had been drinking all day long, to the extent that she did not even remember being arrested and taken to jail. It's up to a judge to determine how reliable a witness she is. Based on the charges against them, both women were in the same state. My assertion in this op-ed commentary is that based on the information that has been made public, it appears unjust that the other woman is one of the parties named in the lawsuit. In our culture, a lot of problematic assumptions are made about people who have, or are perceived to have, HIV. My intention here is simply to question those assumptions, and to flag that the legal test for harm related to HIV exposure, that one person exposed another to serious risk of grevious bodily harm, is very unlikely to be proven in this case. If, based on any the information that has been made public, you can think of any other reasons that the second woman should be implicated in this lawsuit, I would be quite curious to hear them.
please check your facts
Mr Syms, you say the RCMP account was based on a videotape. Have you seen this videotape? I guess you don't live on the westcoast. If you did you would know the RCMP gave a false account of the Dziekanski killing at the Vancouver airport even though they had videotape contradicting almost every significant fact they gave about his death. In that case, they thought they were going to be able to keep the videotape from the public for a couple of years, but a judge intervened and ordered the video released. I can guarantee the public will never see the Kamloops videotape so the RCMP can pretty much say anything they want about it and we have to take their word.
Single minded, unwavering, objectivity ??
Sean, (XTRA) of course you are right...and anyone who does not agree may support other publications...a lovely, cool euphemism for...
Let's try that quote from Rick again
Sorry if it wasn't clear because of the formatting issues with my post above. I am reposting to make sure Rick's words about objectivity and bias are readable, so here we go: Bias, for instance -- the very thing objective journalists ever claim to avoid. But that claim itself is a fraud, as is the very notion of objectivity. No one is truly unbiased. Anyone claiming to be is lying. However balanced their coverage of both [not all] side of the story, media bias begins with deciding which stories count as news.

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