Sample Argumentative Essay On Criminalization Of HIV Non‐disclosure

Introduction

Under Canadian criminal law, currently, it is illegal for people with HIV/AIDS to engage in sex without disclosing their HIV-positive status to their sexual partners. Known as the "criminalization of HIV non-disclosure", the legal obligation to disclose the HIV-positive status was first established in the 1990s with the case of R. vs Cuerrier in which the Supreme Court ruled that people with HIV/AIDS have a legal obligation to reveal their HIV-positive status to partners before forming any physical intimacy that poses a "significant risk of serious bodily harm" to the sexual partners (Mykhalovskiy and Betteridge, 2012). The defendant Cuerrier was given the sentencing for two counts of aggravated assault for not revealing his HIV status to women he slept with without a condom. Though neither woman became HIV positive as a result of physical intimacy with Cuerrier, the Supreme Court ruled that the non-disclosure of HIV-positive status is a fraud that impairs a partner's consent to sex, and hence, under Canadian criminal law, an otherwise consensual sex becomes a sexual assault in the case of non-disclosure of HIV-positive status (Mykhalovskiy and Betteridge, 2012). This ruling passed in 1998 has become harsher recently in 2012 when the Supreme Court of Canada has mandated the disclosure of HIV/AIDS positive status before engaging in activities that pose even minimal risks of a "realistic possibility of HIV transmission" (Dej and Kilty, 2012).
The criminalization of HIV non-disclosure has sparked a huge critical discourse among legal advocates, community activities, researchers and others as regards the justification of this law. The opponents especially argue that criminalizing HIV non-disclosure does not benefit HIV prevention; rather it hinders HIV prevention and the support given to people with HIV/AIDS, whereas proponents of the law believe that since sexual contact with HIV-positive people may lead to an irreversible consequence, it is the right of HIV-negative people to know if their health is under risk because of the sexual contact. This paper would take the argument forward touching upon the efficacy and the circumstances of the application of this law, questioning its moral necessity and examining an alternative solution.

Circumstances of the Application of HIV Non-Disclosure Law

Since the Supreme Court has not clearly defined the significant risks and has not established any clear parameter for the lower courts to determine whether the risks in a particular case can be considered significant, there are a lot of confusion and uncertainty in the application of the HIV non-disclosure law. HIV-positive people have been charged with criminal law even in cases where the transmission was almost non-existent or negligible (Young, 2015). In fact, Canada has emerged as one of the top 10 countries in the world for carrying out maximum number of arrests and prosecutions of HIV-positive people per capita. Though only 22% of the non-disclosure cases end in HIV transmission, the rate of convictions and imprisonment for the risk of HIV transmission and HIV non-disclosure is significantly high at 63% (Dej and Kilty, 2012). HIV-positive people have been charged with criminal offense even when they engaged in relative safer sexual activities like protected intercourse and oral sex, which pose very minimal risk of HIV transmission. In such circumstances, the question as regards the efficacy of the law comes under question (Dej and Kilty, 2012).

Efficacy of the HIV Non-Disclosure Law

A close inspection of the application of HIV non-disclosure law brings out an array of findings, which indicate stereotyping and discrimination. Eric Mykhalovskiy and Glenn Betteridge (2012) in their study have revealed that gender is strong a predictor of whether or not someone will be charged with the law of HIV non-disclosure. In Canada, a substantial majority of the individuals slapped with criminal charges are heterosexual men, who constitute 72% of the arrests and incarceration made in relation to HIV non-disclosure. Of the heterosexual men who have been charged with criminal offense related to HIV non-disclosure between 2004 and 2010, the number of black men arrested and incarcerated is significantly higher than that of white men (Mykhalovskiy and Betteridge, 2012). Furthermore, what appears striking is the underrepresentation of gay men among defendants. Though the prevalence of HIV/AIDS is high among homosexual men and the sexual contact between HIV-positive and HIV-negative men is common, it is the heterosexual black men who are over-represented among the arrestees (Mykhalovskiy and Betteridge, 2012). Compared to the prevalence of HIV transmission among homosexual men, the rate of HIV transmission among heterosexual men is low, except the community of drug users in Vancouver. Taking all these facts into account, it seems that the application of HIV non-disclosure law is not uniform and that a general bias and tendency to arrest and incarcerate black heterosexual men is prevalent.

HIV Non-disclosure Law – Morally Right?

The proponents of the HIV non-disclosure law argue that as soon as a man or woman gets infected with HIV, it becomes his or her moral liability to prevent the disease from spreading, and that they can do by revealing about their HIV-positive status to partners before engaging in sex. The data collected in an annual periodic survey of homosexually active men in the UK, the Gay Men’s Sex Survey (GMSS), reveal that a majority of the respondents believe that people diagnosed with HIV should always disclose their HIV-positive status to their partners before sex (Dodds, 2008). Since a single sexual encounter can lead to a catastrophic result, it is the duty of the HIV-positive people to protect others.
However, opponents argue that by criminalizing non-disclosure of HIV, the government is attaching a stigma to the disease, thereby discouraging people from getting tested or treated for the fear of prosecution. Currently, over 60 countries criminalize HIV transmission, including Canada, 27 African countries, 30 out of 50 states of the USA, 9 European countries, and 13 countries in Asia and the Pacific (GCHL, 2015). The severity of punishments has led to a phobia of AIDS due to which people with HIV/AIDS are looked upon as walking bio-hazards (Young, 2015). Since a person who is not aware of his HIV-positive status can also be convicted under the HIV non-disclosure law, it totally undermines the meaning of the justice system in which the presence of a guilty mind as well as guilty act is required for conviction, but in the case of HIV non-disclosure law, the presence of guilty intent is not a requirement for conviction (Young, 2015). Therefore, from the moral perspectives, the application of non-disclosure law is totally wrong.

Alternative Solution

The current HIV non-disclosure law puts the entire responsibility of safer sex on the shoulders of HIV-positive people, and thereby, it tends to isolate and stigmatize people living with HIV/AIDS. In view of the fact that the application of this law is discriminatory and that it hinders people from getting tested and treated for HIV infection, an alternative solution is necessary, because simply HIV non-disclosure law is not useful in mitigating the risks of HIV transmission. The use of condoms is the safest way to have sex, and studies have proven that the use of male latex condoms prevents the permeation of any infectious agent contained in genital secretions (Dej and Kilty, 2012). Therefore, instead of enforcing discriminatory HIV non-disclosure law, the safest use of condoms needs to be promoted and educative campaigns of HIV/AIDS infection should be held to make people aware of the causes and consequences of HIV infection.

Conclusion

Since the time HIV non-disclosure law has been affirmed by the Supreme Court, a slew of debates has started among the HIV community activists, researchers, legal advocates and others as regards the justification of this law. Under HIV non-disclosure law, it is criminally offensive for a HIV-infected person not to disclose his or her HIV-positive status to the sexual partner prior to sex. The proponents of this law argue that since a sexual encounter between HIV-positive and HIV-negative people poses a modicum of threat to the well-being of HIV-negative people, it is the moral responsibility of the HIV-positive people to protect others from HIV infection. However, it is morally wrong to shoulder the responsibility of HIV prevention on HIV-positive people only, especially by criminalizing their sexual encounter without disclosure of their HIV status, because that way, HIV-positive people are being a subject of discrimination, isolation and stigmatization, which instead of mitigating the risk of HIV transmission will fuel its growth, because many people will shy away from testing or treating themselves for the disease for the fear of prosecution. Besides, the application of the HIV non-disclosure law is faulty as it tends to incriminate even those people not aware of their HIV-positive status. Thus, the law undermines the principle of justice system according to which the presence of guilty intent along with the guilty action is necessary for conviction, but in the case of HIV non-disclosure law, the presence of a guilty intent is not necessary for conviction. Weighing all the facts into account, it seems that the government instead of criminalizing HIV-positive people for non-disclosure should focus on holding HIV educational campaigns and promote the use of condoms and safe sex to ensure the prevention of HIV transmission.

References

Mykhalovskiy, E. & Betteridge, G. (2012). Who? What? Where? When? And with What Consequences? An Analysis of Criminal Cases of HIV Non-disclosure in Canada. Canadian Journal of Law and Society. 27(1), 31-53. doi: 10.3138/cjls.27.1.031
Young, D. (2015). Individual Rights and the Negotiation of Governmental Power: The Risk of HIV Transmission and Canadian Criminal Law. Social & Legal Studies. 24(1), 113-134. doi: 10.1177/0964663914544900
Dodds, C. (2008). Homosexually active men’s views on criminal prosecutions for HIV transmission are related to HIV prevention need. AIDS Care. 20 (5), 509-514. doi: 10.1080/09540120701867131
Global Commission on HIV and the Law (GCHL). (2015). Fact Sheet on HIV and the Law: Risks, Rights & Health. Retrieved on 20th March, 2015 from <http://www.hivlawcommission.org/resources/report/HIV&Law-Factsheet-EN.pdf>
Dej, E., & Kilty, J. (2012). Criminalization Creep: A Brief Discussion of the Criminalization of HIV/AIDS Non-disclosure in Canada. Canadian Journal Of Law And Society, 27(01), 55-66. doi:10.3138/cjls.27.1.0