An editorial in the Globe and
Mail on July 11, 2012 criticized a recent United Nations report that calls for
all nations of the world to refrain from criminalizing HIV. The Globe says: “And where the report
seems to go astray in its laudable concern for the rights of persons living
with HIV is in the realm of disclosure. It labels as ‘counterproductive’ laws
that ‘criminalize HIV
transmission, exposure or non-disclosure of HIV status.’” The article then goes
on to imply that because AIDS is a
life-threatening illness, those who continue to have unsafe sex without
disclosing their HIV status should be put in jail.
This editorial comes at an
important moment in Canadian history. The Supreme Court of Canada is on the
verge of making a landmark decision about whether or not there should be legal
penalties for HIV positive people who have sex with others. And law courts in
Ontario are presently refusing to dismiss sexual assault cases against HIV
positive people who do not disclose, even
when they use condoms.
Surprise! For much of the general
public (and for the Globe) the issue is a no-brainer. They say “Why shouldn’t
people tell their sexual partners their HIV status? If they’re going to have
sex with a lot of people, it’s their responsibility to disclose, and if people
can’t accept that, then they should be put in jail!”
But this kind of reasoning makes
very little sense.
Consider an analogy.
I posit that criminalizing people
who have sex without disclosing their HIV status makes just as much sense as
jailing women for having abortions.
First:
In both cases, some people assert
that a human life is at stake and some people don’t. This is because many
people avidly believe that to destroy a foetus is murder; while others say
that’s a crazy idea. Many believe that HIV is a death sentence; others say that’s
a preposterous notion.
Second:
In both cases some say that a
jail term will discourage these activities, others don’t. This is because some think that if
women and their doctors were jailed for performing abortions then it would
discourage people from having abortions. Some also think if people were jailed
for not disclosing their HIV status, it would encourage people to be more
honest. But is this true, or would the threat of jail actually drive these
activities underground?
Abortion is unpleasant; no one wants anyone to have an
abortion. HIV is very unpleasant; no one wants anyone to get AIDS.
But one should not arrest women for
having abortions, and one should not arrest anyone for having unsafe sex –
because the issues involved cannot be scientifically proven. Think about it. The following two
questions are ultimately unanswerable
-- Is a foetus already a life?
Who exactly gave me AIDS?
I would suggest that the issues
of abortion and HIV disclosure are alike in another very significant way. Most people weren’t too
concerned about HIV disclosure when AIDS was just a ‘gay disease.’ Now that
AIDS is an equal opportunity infection, non-disclosure is a huge issue. Why?
Because those who favour the criminalization of HIV, see themselves (quite
wrong-headedly) as protecting women.
But it does not protect women to disempower them. Instead of empowering women
to speak up for themselves (i.e. assuming they are capable of demanding men use
condoms, or of making their own choices about abortion) the patriarchy seeks to
disempower women (by telling them they need to be protected from abortions,
promiscuity, and men who want to have unprotected sex with them).
Of
course this kind of paternalistic, puritanical thinking appeals to
fundamentalists everywhere. But why in God’s name (to coin a phrase!) would gay
men support these ideas? Because whenever the issue of HIV criminalization appears,
gay guys go twitter crazy! There are ‘tweets galore’ from gay men yelling
‘Throw ‘em all in jail! Have no mercy! If those sluts didn’t fuck around this never
would have happened!” And why do
gay men believe that? Because most queers are working so hard right now to
prove their respectability that they would gladly send their own kind to the gas chambers to do it. “Justice
be damned! I just want everyone to know I’m a ‘good’ faggot, not a ‘bad’ one!”
The
truth of the matter is that criminalizing HIV non-disclosure makes as much sense
as criminalizing women who have abortions. IT MAKES NO SENSE AT ALL!
Irresponsible, uncaring (perhaps evil) people will continue to make unwanted
babies, and will continue to spread HIV.
We can and should use all our powers of social and moral persuasion to
stop these practices, but they must not become legal issues.
Believe me, that will just make
matters much, much worse.
