When a condom is used, should HIV positive individuals still inform sexual partners of their infected status? Of course. But should HIV positive individuals be legally required to provide such information? According to a New Zealand court, as long as a condom is used, there is no legal duty of disease disclosure prior to sexual intercourse. This ruling is the first of its sort, creating a legal precedent which may be modeled world-wide.
And that’s a good thing.
The case that led to the New Zealand ruling involves two people who met over the Internet. The man was HIV positive, the woman was not. Although the pair used a condom, Justin Dalley did not reveal his infected status. When Ms. X (the woman’s name was suppressed from the media) discovered, after the fact, that Dalley had HIV, she went to court and charged him with two counts of criminal negligence. If Dalley had been found guilty, it may have set the precedent that HIV positive individuals who don’t reveal their condition have committed an illegal act.
Dalley, however, was acquitted under the ruling that in using a condom he had taken necessary precautions to protect his partner. Instead of winning her case, Ms. X helped craft an important legal stepping stone in terms of sexual responsibility and the role of the government in the bedroom.
Ms. X is now campaigning for a law that would require individuals with HIV to reveal that fact before engaging in intercourse.
And that is a terrible idea.
To begin with, the decision to trust another human being is a personal decision, and that trust should not be influenced at any level by a meddling arm of the law. Would Ms. X have trusted Dalley more, knowing that the law would offer retribution if it turned out the man was lying?
Dalley made a bad decision, but so did Ms. X, and a legal charge of criminal negligence wouldn’t change the fact that Ms. X trusted Dalley enough to have sex with him in the first place. If Ms. X is comfortable having intercourse with someone she met over the Internet, but not comfortable asking that person to show her a clean bill of sexual health, then she ought to work out that internal discrepancy on her own. The law has no power to imbue either Dalley or Ms. X with a working moral compass.
It is interesting to note that a requirement of HIV disclosure would basically produce a law demanding that the Truth be told. Unfortunately, there is no way to evaluate whether a sexual partner is telling the truth about his or her disease status sans taking a look at concrete medical evidence, which is exactly what sexual partners should do regardless of any law. For Ms. X to accuse Dalley of “criminal negligence” is to absolve herself of personal responsibility.
Especially frightening about a legal HIV disclosure requirement is the false sense of security contained within such a policy, making silence an indicator of being free from disease. Many HIV carriers are unaware of their infected status; if their sexual partners rely on an HIV disclosure law instead of concrete results from testing, myriad people will be unknowingly at risk, simply because everyone involved believes they are telling and receiving the truth. The law does not regulate the truth. Evidence regulates the truth, and there is no way around that fact.
The law also cannot take the place of self-respect: If Ms. X didn’t have the wherewithal to look after herself in the first place, a legal precaution against lying can hardly offer protection. Ms. X wanted the law to act as a substitute for simply getting an HIV test with her current sexual partner, but the law should also not endorse laziness. As long as it is fairly easy to check if your sexual partner has HIV, there is no need to legally prevent (or attempt to prevent) that person from lying to you.
Most importantly, we can’t take refuge in the assumption that The Law has some overarching power to keep everyone safe, all of the time. Unless Ms. X is advocating for a Big Brother situation, there is no way the legal system can protect individuals from their own poor decisions. The next time Ms. X is having a private moment in her bedroom, or the legal spotlight, she ought to remember that no one can take better care of her than herself. Shifting the responsibility of personal health and safety to rest on the shoulders of the legal sphere will inevitably cause more damage than good.
Keep the law out of the bedroom
Daily Emerald
October 9, 2005
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