Consent, HIV and Information Asymmetries
August 12, 2011 | 4 Comments
by Alex Leger
Comments are a horrible place to have meaningful discussions, but in today’s world of 140 characters or less, it’s better than nothing. That being said, I need to thank Jonathan and the Commons team for giving me a little more space to deal with the questions surrounding the arrest of the 17-year old in Alberta that was dealt with yesterday.
The author, I would argue, less than accurately categorized police publication of the alleged offender’s details as “slut-shaming” which he then defines as:
“An unfortunate phenomenon in which people degrade or mock a woman because she enjoys having sex, has sex a lot, or may even just be rumored to participate in sexual activity…” (Urban Dictionary)
Apparently this shaming occurred despite the fact that police did not mock or degrade the woman but simply stated how many people had been affected (slept with). Is identifying sexual activity at all automatically “shaming”? Does this not go against the whole notion of empowerment, particularly of women? I mean if the police had said “local slut X is wanted for sleeping with multiple men and not informing them of her HIV status” then I might agree, but simply stating that person X had sex is not mocking or degrading.
Promiscuity aside (and personally I don’t care how many people one sleeps with, in this case it’s only relevance is to determine that other people were in imminent danger), the crux of the whole issue is whether or not disclosing one’s health status is necessary to have consensual sex. The author of the above mentioned article/comments claims that the crime in question should not be a crime based on the fact that promiscuous, unprotected sex is a risky endeavor and that the men involved should have taken better precaution against STDs, including HIV.
Now first before we examine this argument, we need to make two assumptions. We need to assume that the woman did not lie about her HIV status to the men, as I think we can all agree that if she did lie it changes the outcome because it could be easily argued that she intended to infect the men. Also we need to assume that she knew about her HIV status, because even a nanny-state socialist like me wouldn’t hold someone accountable for something they didn’t know they had.
So let’s assume that the men did not inquire about her HIV status. Did she commit a crime? Obviously the law says yes. Not informing your partner that you have a communicable, potentially fatal, disease is aggravated sexual assault. But is the law correct? I believe so. While the onus is on the individual to take protective measures, participating in risky activity does not mean that the individual consents to bodily harm.
The author of the piece states that given our education on HIV/AIDS issues, people are aware of the risks of unprotected sex and therefore are responsible for getting infected if they do not take precautions. However due to widely publicized events in the past (namely the Johnson Aziga case), people are aware that HIV positive people have a legal (and moral) obligation to provide their status before engaging in sexual intercourse. Therefore, operating on the assumption that we want an optimistic society where we assume that most people operate within the law, people engaging in sexual intercourse can presuppose that if someone doesn’t offer that information, they are not HIV positive, or at the very least don’t know they are HIV positive. It’s a bit of a weird way of looking at it, but it’s the way it is.
I’ve been trying to think of an analogy, and perhaps the best I can come up with is drunk driving. We all know that drunk drivers get into more accidents, and cause more fatalities than the average person. When a drunk driver kills one of their own passengers, they are held accountable for that fatality, even though the dead passenger should have known better than to get into the car in the first place.
Alex is a musician, writer, and public servant with particular interest in Gramsci and National Security. He currently resides in Toronto but wishes he was elsewhere.
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4 Responses to “Consent, HIV and Information Asymmetries”
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August 12th, 2011 @ 10:42 am
Jonathan was so far out on a shakey limb on this one that I truly feared for his safety. One only has to imagine him condemning the police for publizing the name of a 17 year old guy with HIV who “enjoys having sex” as “stud-shaming” to see the problem.
We can tell ourselves all we want that we consider the sexes equal in matters sexual, but we’re telling ourselves whoppers. Chivalry ain’t dead, eh Jonathan? :-)
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Jonathan McLeod Reply:
August 12th, 2011 at 11:41 am
Don’t worry, I never blog without a parachute.
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August 12th, 2011 @ 6:35 pm
I’m going to, for the most part, step back from the debate right now. I’m interested in hearing a few more people hash this out before I chime in again. However, there are a few things I’d like to quickly address.
First, you’re right about the definition of slut shaming. I offered the one from Urban Dictionary in response to a question in the comments, but it’s not really a full definition, it doesn’t clearly apply to this situation. Perhaps I’ll address that in a future post.
Second, I think you’re drunk driving analogy is much more apt than the poisoned drink analogy that came up in the thread of my original post. In fact, I think it fits quite well, however, I would argue that some instances of drunk driving don’t warrant criminalization.
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August 17th, 2011 @ 5:33 am
I really like your article Alex, this is such an interesting debate.I work in HIV in the UK and there have been quite a few prosecutions here for reckless transmission…most of the HIV charities are against prosecutions as they are seen as potentially detering people from having an HIV test and pusjing them underground. So if someone suspected they had HIV but were afraid of prosecution they might decide agaisnt getting tested to remain unaware of their status…but of course you can never really know how many people that would apply to.
One thing you might find interesting is that yesterday a man was jailed for 14 months for infecting his partner with herpes…..whatever your stance on prosecutions, this is a whole new area….
http://www.metro.co.uk/news/872576-man-jailed-for-14-months-for-giving-girlfriend-genital-herpes
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