NZ Aids Foundation wants ethical-legal balance on disclosure of HIV (Opinion: The Dominion Post, 16 March, 2012, p. B7)
“The very real risk of changing the legal precedent is that it will make people who think they may have contracted HIV afraid to come forward to test for fear that they will face serious prosecution and stigma.” Shaun Robinson, executive director of the registered charity NZAF
The NEW ZEALAND Aids Foundation (NZAF), a registered charity with the Charities Commission, has spoken out yet again against the major legal precedent established by the recent Court of Appeal ruling concerning HIV status disclosure, ACC compensation and a clarification of the nature of “sexual violation”.
The NZAF quarter-page contribution to the debate written by its executive director Shaun Robinson involves “the perpetual advocacy of a particular point of view on moral [ethical] issues,” [to use a phrase coined by the Charities Commission] being that of NZAF. At least 30 registered charities have supported the ruling of the Court of Appeal.
The public are well aware that NZAF is a registered charity committed to “the perpetual advocacy of a particular point of view on ethical [i.e. moral] issues” – (c.f. “propaganda” trusts as they are sometimes termed by the Charities Commission et al.).
The focus of NZAF in the present debate is primarily on the so-called ‘rights’ of “gay” or “bisexual persons” who have been diagnosed HIV-positive to withhold that personal information from their sex-partners, despite the fact that there is a very real risk of the transmission of the deadly virus to their partners via anal and vaginal intercourse, especialy when unprotected sex is engaged in.
In advancing this “unconscionable” viewpoint (as it was described in The Dominion Post editorial yesterday), NZAF relies on a single NZ District Court ruling issued in 2005 which clarified one point in law: that a person knowing he has been diagnosed HIV-position does not have a legal duty to inform his sex partner of his status, provided so-called “safe-sex” practices are adopted. It did not address the specific question of whether or not he had a legal duty to inform his partner of his status if he had used unsafe sex in the same circumstances (anal sex).
NZAF has knowingly withheld the true facts of the case which does not support its view that the Court of Appeal ruling is legally flawed. The latter does not conflict with this 2005 ruling as the cases are very different on some key points as highlighted.
The same HIV-positive man in the 2005 case cited, had been convicted earlier of “criminal nuisance” for failing to notify a male sex partner of his HIV-positive status when they engaged in unprotected anal sex. That partner contracted the HIV virus and the man responsible for transmission of the virus was convicted of “criminal nuisance”. That earlier ruling is in line with the latest Court of Appeal ruling, establishing that the HIV-positive man had a legal responsibility to inform his partner of his status in the case where unprotected anal sex was engaged in. Furthermore, the recent ruling establishes that failure of disclosure led in this case to an act of “sexual violation”.
If the recent Court of Appeal ruling had been on the law books in 2005 the HIV-positive offender might well have been convicted of “sexual violation” and faced up to 20 years in prison. NZAF is dead against any Court taking this position following the latest Court of Appeal precedent. They do not want to accept that effectively the law relating to the definition of “sexual violation” has been changed as a result of the Court of Appeal ruling: placing full responsibility on the HIV-positive person to dsclose his true status.
NZAF’s advocavy on behalf of sexually-active HIV-positive persons is to perpetually thump out the message:
“Condoms are essential in the HIV prevention arsenal because they prevent the entry of bodily fluids into a person’s bloodstream”. (Dom Post, 16/03/12)
Rather than being preoccupied with and effectively communicating the “very real risk” that a person takes having sex in the first place with an HIV-positive person who fails to disclose his status, NZAF appears obsessed with “The very real risk of changing the legal precedent … that [in the view of NZAF] will make people who think they may have contracted HIV afraid to come forward to test for fear that they will face serious prosecution and stigma.”
This convoluted and fatuous reasoning is comparable to repeatedly instructing the little boy who continually sounded the false alarm “wolf” “wolf”, to continue his childish antics because by doing so his audience would be ever more likely to take his ‘dire’ message more seriously.
Just as a condom loses its efficacy in STD prevention and becomes itself a source of health danger, if re-used many times; the perpetual advocacy of the condom-safety plea (“safe-sex”) by NZAF has become counterproductive and largely ineffective, because it is communicated in a moral vacuum, devoid of any real understanding the true nature and purpose of sex, and their message’s primary focus on protecting the HIV-positive person against serious prosecution and stigma.
Fear can be a good thing. (The Bible states: “the fear of God is the beginning of wisdom”. Note: Belief in God is not an irrational belief !). It is not an irrational matter to have some fear when playing Russian roulette. The odds of getting killed are very high! Players who try and eliminate their fears may well benefit from fear reduction by having a steadier finger at the triggr, but the fact is that the odds of getting killed remain very high.
It could be well- argued that the fear a promiscuous homosexual man might have of contracting the HIV-virus from a casual homosexual partner, because of the possibility that his partner might not chose to disclose his real status; is a very good thing. It might actually lead him to choose not to engage in risky sexual practices (anal sex).
It could equally be well-argued that the fear a promiscuous homosexual man might have being criminalised and served a 20 year jail-term for causing a partner to contract the deadly HIV-virus in a casual homosexual encounter involving unprotected sex, due to lack of status disclosure, is a very good thing. Why should society not have a right to seek to curb such unhealthy criminal activity by law?
The stigmatisation of those homosexual and bisexual persons who knowingly infect others with HIV in unprotected sex encounters is inevitable whether or not the precedent established in the recent Court of Appeal ruling is followed or not in future rulings. The stigmatisation is due to moral outrage on the part of the community sickened by such predatory unhealthy and immoral behaviour and the lawlessness.