Nothing but truth for HIV sex partners. The Dominion Post Editorial. March 125, 2012
“[The NZAF] position is a cop out … It is irresponsible and does nothing to engender confidence that [this registered charity] has the community health as its highest priority”
THE NZ AIDS FOUNDATION [a registered charity with the Charities Commission] supports the right of HIV-positive partners to conceal their condition from their sexual partners provided they use proper protection. It could not be more wrong.”
Everybody who enters into a sexual relationship has a fundamental right to be fully informded about any risk they might be exposing themselves to. HIV might not be the near-cerrtain death sentence it once was, and the risk of transmitting it through sex might be small with the right protection, but there is still a risk. Condoms can be faulty, they can break and can be ineffective if not properly used. It is unconscionable to advocate the right for somebody to expose another person to that risk without them knowing.
The Court of Appeal ruling that awarded ACC cover to a woman who suffered mental trauma after discovering she had been having unprotected sex with an HIV-positive man sets an important precedent in that regard. It opens the door to sexual violation charges in cases where people who have the disease fail to tell their partners.
Justin Dalley, the man at the centre of the case, knew he was HIV-positive, but deliberately withheld that from his partner till she was told by a mutual acquaintance. She was lucky not to contract the disease herself, and the six-month wait to be cleared caused her serious distress.
The issue for the Court of Appeal was not whether Dalley infected his victim, but whether she gave fully informed consent to the unprotected sex. She says that had she known he was HIV-positive, she would have refused. The court has found that Dalley’s failure to disclose his [HIV-positive] status nullified consent, and so was a sexual violation for the purposes of ACC cover.
To what extent it can be applied to criminal cases is yet to be tested. So too is the issue of whether it applies to other sexually-transmitted diseases and cases where people fail to disclose their status, but use protection to limit the chances of infecting their partner.
There is legal precedent on the latter question, set in another case involving Dalley and a second woman. He did not tell her he had HIV, but the district court found that by using a condom he had met his legal duty to take reasonable precautions to avoid infecting her.
Whether the Court of Appeal ruling affects that decision is not clear. In any case, it is almost ceretsain that if it is used as the basis to charge someone with sexual violation in the future, it will be challenged.
The Aids Foundation claims that allowing sexual violation charges against people who know they have HIV but fail to tell their sexusal partners will increase discrimination and lead to a “significant decrease” in testing. That is a cop-out. The Court of Appeal case was not about the rights of people with HIV, but the rights of those with whom they wish to have sex to have a full understanding of the possible consequences.
The Aids Foundation disagrees. It is happy for those who have HIV to keep that secret from their sexual partners, provided they use condoms and lubricant. Its position is irresponsible and does nothing to engender confidence that it has the community’s health as its highest priority.
Source: The Dominion Post Editorial. Thursday, March 15, 2012, p. B4. [Emphasis added]
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