Canadian Supreme Court reaches sensible decision on HIV transmission

Today the Canadian Supreme Court reached a sensible verdict on the tricky issue of the criminalisation of HIV transmission. It found - essentially - that folks who are HIV infected, on HIV medicine, and who have a low viral load (note, it is not a requirement that there is an undetectable viral load) and who use condoms, are under no obligation to disclose their HIV status to their sexual partners.

The main logic of the Court's decision is that if there is no significant risk of bodily harm (as is the case if the above mentioned conditions are met) the legal requirement to inform one's sexual partners of one's infection falls by the wayside.

Of course, many AIDS activists will be annoyed by this decision as it maintains the criminalisation of non-disclosure in cases where someone's viral load is not low, or where someone is not using a condom at the same time that his or her viral load is low, etc.

However, this decision makes a powerful, and sensible case to people at significant risk of HIV infection to get tested, and to get on HIV medication (both to protect their health and that of people they choose to have sexual intercourse with), as well as to use condoms each time they have sex with people they have not disclosed their HIV status to. In fact, this line of reasoning was developed in a paper I published in 2011. You can find it here, the argument runs from p. 310ff.

It might be worth noting that this decision by the Court was unanimous, something quite remarkable, considering the Harper government's recent appointment of four judges to the Court.

Should we expect sexual partners to tell us about health risks?

Let's face it, many, if not most of us are hopelessly romantic when it comes to relationships, certainly new ones. Fresh in love (not to say sexually stimulated) we offer our heart to whoever it is we (well, our biochemistry/hormones) have decided to fall for. The evidence is on the table, that this is the moment where for very many of us our best intentions and precautions in terms of STI (yay, sexually transmitted illnesses) prevention fly out of the window. A study published this month in the journal Sexually Transmitted Diseases (yay, STD) reports that about 70% of us would consider our partner 'safe' if he or she was otherwise generally trustworthy. For better or worse, very very often we are wrong. HIV has reportedly long been delighted that we are as naive on this as we are, because it permits the bug to continue spreading happily ever after. Even in high-risk groups such as gay men the pandemic continues quite efficiently to spread. In the USA the CDC reports data from from 33 states. They show that between 2001 and 2006 new HIV diagnoses increased by 12% annually among men who have sex with men (13 to 24 years of age) and by 15% per year among black men in the same age group.

So, is it reasonable to expect our sexual partners to tell us about health risks such as HIV (ie that they're at risk, but don't know, or that they know to be HIV infected)? Difficult call, isn't it? On the one hand, there's plenty of good ethical as well as public health reasons for being honest with our partners about our STI risks. Successful relationships, all other things being equal, depend on honesty and our ability to trust our partner. It's unacceptable to knowingly subject a loved one (anyone, probably) to serious risk of bodily harm (that's what an HIV infection undoubtedly constitutes). I'm sure, most people understand this, and most people (most infected people, too) would not knowingly subject a loved one to serious risk of bodily harm, unless there were strong reasons for doing so. Note that I am not saying these strong reasons make their conduct anymore ethically acceptable, but they might make it understandable. I think, with the quasi-religious stigma that progressive activists as well as religious fundamentalists have created quite successfully around HIV/AIDS, it's quite demanding, possibly even too demanding of people who are infected or at risk of infections to tell their sexual partner(s). May be we'd just protect ourselves, but then, it seems most (far too many, if that makes you feel better than the word 'most') of us are not very good at that either. Anybody with a magic bullet please?!

What amuses me a bit is the continuation of a quasi-enlightenment based response to the problem at hand: The Washington Post duly editorializes, 'The fight against AIDS demands not only vigilance but also continuous education. An informed populace is the best defense against this ferocious epidemic.' This belief that education is the key fascinates me, as we have overwhelming evidence that our response to HIV risk (in the context of sexual behavior) isn't rational to begin with. We know it not only for the USA but for plenty of other countries. Just one example from ... of all places, Angola, reported by the kaiser family foundation: 'According to research by ANASO, 70% of youths in the country do not use condoms, despite their awareness of HIV. The network plans to partner with the Ministry of Education and communities throughout the country to mobilize and educate 340,000 young people through 2010.' So, if 70% of sexually active youngsters in the country don't use condoms despite having relevant knowledge of HIV, and access to rubber, what makes people stick with the idea that it's about education? Beats me. Anyone with a magic bullet on this, email me (the dinner is on me :): udo.schuklenk@gmail.com . Hey, I know about A and B already, so don't bore me with your religious drivel on this, if that is what you think is worth mentioning. Doesn't work either, just check out the unfolding AIDS disaster in the religious right's posterboy on this, Uganda.