Sexual Disclosure

October 6th, 2005 at 9:37 pm by David Farrar

Some interesting debate on the blogs about the decision of a NZ court that an HIV positive man did not have to disclose he has HIV to his partner, as he used a condom. Previous cases have found unprotected sex does require disclosure of HIV – in fact a criminal offence not to do so.

On a moral level, I think there is an absolute duty to tell a sexual partner if you have HIV, regardless of condom use. In fact I regard it as vital you’re disclose any STDs at all. I doubt I would stay for a second with someone who I found hadn’t told me.

But whether you legislate is a very different matter. Already the court gets into difficult areas, as Tumeke points out, by ruling that you don’t need a condom for oral sex (if HIV positive) as long as you don’t come in your partner’s mouth. Will the next step be timing how long until one pulled out?

In theory it is almost impossible (not totally) for a man to catch HIV off a woman through PIV sex. Could a court rule a lower level of disclosure requirements for women over men?

Also why does legal requirement to disclose only apply to HIV? How about all the other nasties? Frog asks whether this might be a slippery slope that you have to disclose any known genetic issues?

Perhaps the law should focus on harm? That is, if through non disclosure a partner is infected with something nasty, they have legal recourse?

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24 Responses to “Sexual Disclosure”

  1. Murray () says:

    Should people have to disclose that they are genticaly disadvantaged (really honking ugly) if alcohol has been consumed?

    Could save a lot of unhappy wake up calls.

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  2. mikey bill () says:

    It has been really worrying listening to some of the comments about this on talkback. I had no idea people were so ignorant of some of the basics of biology.

    I find myself in the odd position of agreeing with Mr Farrar here- morally I think disclosure is required if one has pretence to being an honourable person, with some sense of responsibility and personal integrity.

    Turning it into a legal requirement however will simply mean people will lie about thier status, of any infectious disease. If person A accuses person B of not telling them and also infecting them, B can just deny it and blame A’s promiscuity. Far far better for everyone to be conscious of protecting themselves and taking personal responsibility for thier own actions.

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  3. Logix () says:

    I’ll go with DPF 100% on this one. It is pretty good example of how laws are not the best solution for every problem.

    >Far far better for everyone to be conscious of protecting themselves and taking personal responsibility for thier own actions.

    For every right that a person wants to claim, there is an equal and balancing responsibility to be shouldered. This would be a bit of a cliche, but the shouting matches over “rights” typically drowns out those who would quietly get on with making something of their lives.

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  4. dave () says:

    It’s a stupid decision that assumes that condoms are 100 percent effective. Obviously the judge has not had sex with an HIV positive person.

    I can hardly wait for the case of an HIV positive person who has infected a person because the condom didn’t work.

    What will the AIDS Foundation say then? Can someone tell me?

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  5. sock thief () says:

    On balance I probably come down on the side of the judge, but only just. I’m not convinced by the AIDS Foundation argument that it would be harmful to the cause of dealing with AIDS if this type of thing were illegal.

    The issue invloves deliberate dishonesty that can lead to lethal consequences. The risk may be small but the results are significant. And there is a power imbalance – knowledge vs lack of knowlegde. In this sort of situation it is the duty of the State to look into what is happening in people’s bedrooms.

    The slippery slope argument has no merit.

    I would like to know if the Judge looked at similar issues of legal reponsibilty not involving HIV.

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  6. Logix () says:

    Dear Dave,

    Have you any idea what the actual rate of HIV transmission is between hetrosexual couples who use condoms? It is pretty damm low. Now you may argue that the non-HIV partner has right to know even about that very small risk, but then what about all the other risks, pregnancy, STV’s etc, that are potentially concurrent with each and every sex act we undertake?

    The reality is that if you are having casual sex with people, condoms are pretty much essential. They are not 100% fail-safe, but most people use them accepting that they reduce all the risks significantly enough to justify the reward.

    Life is a balancing act between risk and reward. Few people go through life attempting to eliminate all risk; equally few people get very far in life if they seek out every risk. We all live somewhere in between, and we all choose the balance with which we are comfortable. Every person who wants sex with a new partner whose history and status is unknown is taking on a risk of some degree…the totally safe alternative is celibacy before lifelong monagamy for both partners. Nice, but most of us don’t make that choice. On the other hand having large amounts of unprotected sex is another sort of choice, but don’t come bleating to me about the consequences. There are some decisions in life I want to take for myself, without laws, or a court intervening.

    Would I have intercourse with a woman who was HIV postive? If I had used condoms I probably would not stress about it too much. (Even if I had not the chances are still fairly low, but I would get tested anyhow.) HIV is a total bastard, but it’s a disease, not a moral failing. If despite precautions I still became infected…shit happens and I would take responsibility to work at treating the condition….and be very unlikely to go racing off to court looking to blame someone.

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  7. dave () says:

    I think you`d stress about it a hell of a lot more if you weren t aware that the person you had sex with was HIV positive. And if you were aware, but there was not sufficient risk to get stressed about, then why get tested?

    The question is, if you were in a relationship with a person who was HIV positive, and after a short while commited yourself to that person in a nonogomous way, whats to stop you using condoms if you didnt know the person was HIV. See my blog for what happened to a former partner of this man where this very circunstance arose.

    PS why ask the question of heterosexual couples? Homosexuals have sex too. Not that Dalley was homosexual, though.

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  8. sock thief () says:

    Consider 2 one nite stands. In one, an HIV +ve person has protected sex with another person but does not inform them. Later, that person gets AIDS from that event (small probabilty but possible). In the second, an HIV postive person has sex with someone else, but tells them they are +ve. That other persnn also becomes HIV +ve. Are we to consider the two situations to be legally equivalent?

    The difference between being informed and not is very real in terms of future actions. If one had had protected sex with someone you know was HIV +ve then I would say that that person is far more liekly to have an HIV test – they know they are at risk.

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  9. Sarah () says:

    > but then what about all the other risks, pregnancy, STV’s etc, that are potentially concurrent with each and every sex act we undertake?

    The other risks are short term hassles. A 9 month gestation is nothing compared to a lifetime of illness with early death guaranteed.

    Ethically the behaviour is abhorrent, but I think legally when you have a significant disease like HepC or HIV you should be required to disclose.

    I know that there are infected people out there who don’t know so you should treat everyone as potentially infected – and you don’t want to turn people off finding out. You don’t want to have to disclose over every situation, but if you’re going to have sex then they should know about any KNOWN risks.

    Who remembers sex ed at school when we were told that the withdrawal method doesn’t work because there is a release of semen prior to ejaculation? Anyone who’s given a BJ knows that’s true, you can taste it!

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  10. Logix () says:

    I agree that there are any number of scenarios that can play out here…. all of them sad. I guess that my position is that you should act AS IF every partner you have sex with is HIV positive, until proven otherwise.

    After all the difference between someone who knows they have HIV, and someone who does not, means nothing to the virus….but condoms are used correctly then the chance is damm small, and the chances of harm are a lot less than any number of other risks we unwittingly accept on a daily basis.

    I agree totally that if you KNOW you are HIV positive then it is the principled thing to inform your partner, on the other hand for many people there is a fairly large disincentive to do so because many potential partners are going to overeact to the risk and say no. You simply cannot afford to assume the other person is always going to be doing the “right thing” by you, when all they want (and you want) is to get their end off.

    And the world of nightclub meatmarkets, drunken one night stands, and mulitple casual sex partners is a fairly ethically compromised and risky one anyhow, so how are we to make fine legal judgements on degrees of ethical culpability of both partners?

    Personally I feel that if you are having sex with someone, and you do not know their HIV status, then you are assuming a risk that you have to accept the consequences of. Just saying “I didn’t know” isn’t a good enough excuse in this day and age.

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  11. Berend de Boer () says:

    Condoms prevent HIV. Yeah right.

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  12. Craig Ranapia () says:

    Sock Thief:

    Yes. Cross-infection with another strain of HIV can be a very big deal indeed to someone who is already HIV-positive.

    Logix:

    I think you’re missing the point. However remote the chances, I’d like the opportunity to make up my own mind before exposing myself to the HIV virus – or any other STD, for that matter. A virus doesn’t work the odds.

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  13. Logix () says:

    > Condoms prevent HIV. Yeah right.

    lol…providing a very quick example demonstrating one of my points above. Overeaction.

    Craig,

    No I do get the point, of course it is desirable to know someones HIV status before you have sex with them. I thought I made that point very clearly…the question is, should the law enforce it?

    A reasonable analogy. (And no analogy is perfect.) Cars can kill while travelling at any speed, even at 5km/hr in a driveway. But the law assumes that if you take precautionary measures, eg drive within the speed limits and obey the road code, then you are not legally culpable for any accident that may occur. The law in this case accepts that by driving within the rules, the reward (getting to where you want to go) is larger than the risk (the chance of killing someone). Every adult knows however that cars are dangerous and regardless of whether they are being driven safely or not, we all act to protect ourselves from them, eg we don’t step immediately in front of one…the laws of mechanics will get you. And at the same time the law does not require drivers to put a large neon sign on the front of a car saying “warning this object is dangerous to your health if you walk in front of it while it is moving”.

    The question as I see it is, where does the law stop and individual responsibility start? Something I would have thought you guys were quite passionate about.

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  14. Brian (Shadowfoot) () says:

    I have been in that situation. A few years ago I was dating someone for a few weeks before he told me. It was a difficult thing for him to do, as he told very few people, preferring to keep it quiet. He knew he was risking our relationship by mentioning it. I chose to stay with him. I was aware of the risks, and knew them to be minimal by taking precautions.

    It’s all about perceived risk. By looking into it I knew I was safe enough. Other everyday things in my life are riskier, such as crossing the street.

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  15. dave () says:

    Individual responsibility, in this case, starts when there is a risk. The law should reflect disclosure of risk. Even the court heard that there was a risk of infection with condom use.

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  16. mikeybill () says:

    If someone has TB and doesn’t tell you before coughing in your presence and spreading it to you are they breaking the law? And some forms of TB are now so virulent they are untreatable, unlike HIV which is now often compared to diabetes in being a manageable chronic illness.

    Morally I think people do have an obligation to tell, as I have earleir stated, but legally, no, I don’t think it works.

    I think a lot of the reaction about this is not to do with HIV itself, but its association with sex.

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  17. RedGreen () says:

    Justice Thomas is correct, legally speaking, in making the distinction between one’s moral duty and one’s legal duty. In like manner, Professor Rishworth is correct when he states that “the judgment balanced the right of a person to know a sexual partner’s HIV status with legal obligations to take “reasonable” precautions not to endanger a person’s health”, as the Herald reports him saying.

    For instance, when a person is drowning in a river, one certainly has – in my view (though some such as the Libertarianz would dissent) – a moral duty to dive in and save that individual. However, this on-looker has no legal duty to do so, and he/she cannot be indicted for this *omission*. (The situation would be different in a ‘guardian’ situation, where the omission will be deemed an act of *negligence*.)

    So it *possible* to advance the line of reasoning that Dalley, despite not having a moral duty of disclosure toward his sexual partner, has committed an act of negligence, given that their sexual contact puts them in a ‘fuduciary’ relationship of some sort.

    This would contrast with the analogy of the random on-looker seeing someone drown, since the two have no connection whatsoever. Had it been a caregiver who failed to rescue, say, a child under her/his care, she/he would be deemed to have been negligent. The same *can* be said with regards Dalley, whose sexual contact with a KNOWN person elicits a duty of care on his part.

    I personally don’t have a strong view either way. As a law student, all I would say is that the right decision was made from a legal standpoint – for it was made in accordance with statute and precedent.

    However, let me float this thought: We could end up in both a slippery slope(1) and an ‘opening of the floodgates’(2) scenario when morals become injected into the statute. Thus we have to take precautionary measures before we read morals into statute, if at all.

    _________

    (1) For instance: Whose morals? Which morals? Why these morals and not those? Do some morals hold more weight than others? What is the threshold test for recognising a moral? (The list goes on…)

    (2) For instance: Since these morals are read into – and/or recognised by – statute, why not include all these other ones as well? Where should we draw the line? Should we even draw the line? How rigid should the line be? Can we make exceptions? Can we remove the statutory provisions for morality once they’ve been incorporated into statute? (And the list goes on…)

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  18. RedGreen () says:

    Justice Thomas is correct, legally speaking, in making the distinction between one’s moral duty and one’s legal duty. In like manner, Professor Rishworth is correct when he states that “the judgment balanced the right of a person to know a sexual partner’s HIV status with legal obligations to take “reasonable” precautions not to endanger a person’s health”, as the Herald reports him saying.

    For instance, when a person is drowning in a river, one certainly has – in my view (though some such as the Libertarianz would dissent) – a moral duty to dive in and save that individual. However, this on-looker has no legal duty to do so, and he/she cannot be indicted for this *omission*. (The situation would be different in a ‘guardian’ situation, where the omission will be deemed an act of *negligence*.)

    So it is *possible* to advance the line of reasoning that Dalley, despite not having a moral duty of disclosure toward his sexual partner, has committed an act of negligence, given that their sexual contact puts them in a ‘fuduciary’ relationship of some sort.

    This would contrast with the analogy of the random on-looker seeing someone drown, since the two have no connection whatsoever. Had it been a caregiver who failed to rescue, say, a child under her/his care, she/he would be deemed to have been negligent. The same *can* be said with regards Dalley, whose sexual contact with a KNOWN person elicits a duty of care on his part.

    I personally don’t have a strong view either way. As a law student, all I would say is that the right decision was made from a legal standpoint – for it was made in accordance with statute and precedent.

    However, let me float this thought: We could end up in both a slippery slope(1) and an ‘opening of the floodgates’(2) scenario when morals become injected into the statute. Thus we have to take precautionary measures before we read morals into statute, if at all.

    _________

    (1) For instance: Whose morals? Which morals? Why these morals and not those? Do some morals hold more weight than others? What is the threshold test for recognising a moral? (The list goes on…)

    (2) For instance: Since these morals are read into – and/or recognised by – statute, why not include all these other ones as well? Where should we draw the line? Should we even draw the line? How rigid should the line be? Can we make exceptions? Can we remove the statutory provisions for morality once they’ve been incorporated into statute? (And the list goes on…)

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  19. RedGreen () says:

    Justice Thomas is correct, legally speaking, in making the distinction between one’s moral duty and one’s legal duty. In like manner, Professor Rishworth is correct when he states that “the judgment balanced the right of a person to know a sexual partner’s HIV status with legal obligations to take “reasonable” precautions not to endanger a person’s health”, as the Herald reports him saying.

    For instance, when a person is drowning in a river, one certainly has – in my view (though some such as the Libertarianz would dissent) – a moral duty to dive in and save that individual. However, this on-looker has no legal duty to do so, and he/she cannot be indicted for this *omission*. (The situation would be different in a ‘guardian’ situation, where the omission will be deemed an act of *negligence*.)

    So it is *possible* to advance the line of reasoning that Dalley, despite not having a moral duty of disclosure toward his sexual partner, has committed an act of negligence, given that their sexual contact puts them in a ‘fuduciary’ relationship of some sort.

    This would contrast with the analogy of the random on-looker seeing someone drown, since the two have no connection whatsoever. Had it been a caregiver who failed to rescue, say, a child under her/his care, she/he would be deemed to have been negligent. The same *can* be said with regards Dalley, whose sexual contact with a KNOWN person elicits a duty of care on his part.

    I personally don’t have a strong view either way. As a law student, all I would say is that the right decision was made from a legal standpoint – for it was made in accordance with statute and precedent.

    However, let me float this thought: We could end up in both a slippery slope(1) and an ‘opening of the floodgates’(2) scenario when morals become injected into the statute. Thus we have to take precautionary measures before we read morals into statute, if at all.

    _________

    (1) For instance: Whose morals? Which morals? Why these morals and not those? Do some morals hold more weight than others? What is the threshold test for recognising a moral? (The list goes on…)

    (2) For instance: Since these morals are read into – and/or recognised by – statute, why not include all these other ones as well? Where should we draw the line? Should we even draw the line? How rigid should the line be? Can we make exceptions? Can we remove the statutory provisions for morality once they’ve been incorporated into statute? (And the list goes on…)

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  20. RedGreen () says:

    (Ooops sorry for posting twice; the screen kinda froze so I kept sending it…) :-P

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  21. RedGreen () says:

    (Sorry about the multiple posts people; the page takes ages to load so I keep sending it, not knowing if it’s gone through.) :-P

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  22. sock thief () says:

    The trouble with slippery slope arguments is that you never know where they will lead.

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  23. Judges are asses () says:

    YES!!!! and YES!!!!again,
    People with SERIOUS LIFE THREATENING COMMUNICABLE STDs , AIDS whatever,, should HAVE to inform the sexual partner!!.

    There is absolutely no moral arguement against this ,,FULL STOP!!!.

    May the Judge who let this one go, rot in hell and may his balls drop off.

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  24. Logix () says:

    > There is absolutely no moral arguement against this ,,FULL STOP!!!

    umm… if you had read the thread, instead of sounding off you would have realised that every poster basically agreed with this point.

    The real question is, should the law enforce the morals in this case?

    In some instances law is used to enforce morality, eg in the case of murder. In other cases the law steps back, eg in the case of sexual infidelity for example. The question here is, where is the dividing line in this specific case where an HIV positive person has sex with a condom, thereby hugely reducing the risk, but refrains from advising their partner? Your opinion is clear enough, but most posters have acknowledged that it is close to the line either way.

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