At the heart of the HIV disclosure case before the Supreme Court of Canada on Wednesday is the notion that those infected have a right to privacy and autonomy – a right that manifests itself in not having to tell a prospective sex partner that they have HIV: If the infected individuals are receiving effective treatment or if they use a condom, it’s their right to remain, as it were, silent.
This is a misguided view of individual rights. Autonomy should not give people with incurable illnesses the right to put others at risk. Privacy should not mean that infected individuals may bypass consent, without which sex becomes sexual assault. Rights do not exist in a vacuum. Individuals have obligations, too, and those include the obligation not to physically hurt others, and not to willfully or recklessly spread disease.
HIV advocates say the disease no longer poses a “significant risk of serious bodily harm” – a key phrase in a 1998 Supreme Court case on HIV disclosure before sex. Treatment or condoms should be enough. The Manitoba Court of Appeal accepted this argument in a case now before the Supreme Court.
In that 1998 case, the current Chief Justice, Beverley McLachlin, called the failure to disclose HIV infection an act that “shocks the conscience.” Today, the risk of HIV transmission for unprotected sexual intercourse still ranges from 1 in 2,000 to as high as 1 in 384, and condom use, though reducing those numbers further, is also prone to failure. These numbers still mean a “significant risk,” as most informed people would define it. One in 384, over and over again, is a frightening risk with an incurable disease.
The onus belongs on those infected with HIV, not on their sexual partners. That is an onus that this country’s HIV advocates do not want to accept. If their view holds sway, many people would be left exposed to the possibility of life-altering disease, and the vulnerable would be especially at risk. In one of the cases before the Supreme Court, the accused gave alcohol and drugs to low-income aboriginal young women, teenagers and a 12-year-old girl, in exchange for sex. All except the 12-year-old later said they would not have had sex with him had they known his HIV status.
The right to give or withhold consent to sexual intercourse is the autonomy issue at stake.