Criminalization of Non-Disclosure of HIV Status

I’d like to put forward a lego-ethical question raised during our symposium on HIV/AIDS today. It’s a complex question, and one that I certainly haven’t found an answer for that I’m comfortable with. But here are two contrasting arguments for consideration.

The question was whether or not people living with HIV should be legally obligated to inform their sexual partners of their HIV status.

R. v Cuerrier:

In 1998 the Supreme Court of Canada convicted Henry Cuerrier guilty of sexual assault for having unprotected sex with two women without informing them that he knew he was HIV-positive. Neither of the women actually contracted the virus. I’m mostly legally-illiterate, but as far as I understand it, the court’s rationale went something like this:

Cuerrier was guilty because he knowingly jeopardized the lives of the two women. Although in both cases the women consented to the sex, the prosecutor made a successful argument that their consent was vitiated (nullified) on the basis of fraud. Since Cuerrier had failed to disclose his status, their consent was made with incomplete or fraudulent information. 

Reactions:

Many see the criminalization of non-disclosure of HIV-status as an over-extreme means to address the spread of HIV, which is more-appropriately a public health issue. Read through (only 2 pages – it’s worth it!) this position paper disseminated in June 2008 by the Ontario Working Group on Criminal Law and HIV Exposure.

One of our patient-lecturers this morning expressed his view that criminalization has done worse for the spread of HIV than it has helped. That’s because it has made people even less willing to get themselves tested. Undeniably, the law does not take into consideration the complex array of factors that play into a person’s ability to disclose including limited knowledge about the virus, social stigma, and discrimination.

Does Protection Change the Question?

During unprotected intercourse, there is a 0.2-0.5% risk of HIV transmission from someone who is infected i.e. the risk is small, but real. Using protection such as a condom takes this small risk and vastly reduces it further. Of course, condoms are not fool-proof, and the risk is never zero. But should using protection make a difference for the duty to disclose?

Some say yes. Since the quantity of risk matters, using protection might arguably make HIV transmission pass from the category of a “foreseeable consequence” to “unforseeable”, thus eliminating the duty to disclose.

Your thoughts?

Court Ruling from the Bedside

Usually the law takes time. Just the words “court case” conjour up impressions of a long, arduous process. So I was fascinated to learn that in rare cases, some court rulings can be made tremendously fast.

The example I learned about involved emergency care for a child. More specifically, care for a child whose parents are Jehovah’s witnesses and don’t believe in blood transfusions. While there are provisions in the law for any capable adult to refuse treatment for themselves, parents cannot refuse treatment for their children when it is deemed medically necessary.

Surely this would be a terribly difficult line to take, since saving the child would, in the parents eyes, be condemning them to hell. But the Canadian legal system has determined that parents who refuse medically-necessary treatment for their children are guilty of child abuse.

In these cases, the law can be applied tremendously quickly from the bedside. I’m not even sure who does it (lawyer?, judge?), but someone comes to the emergency department, assesses the situation, and appoints an alternative attorney of care for the child when necessary. I was impressed to learn that the law could act so quickly.

NOTE: All of this presumes that the child is not capable of making their own decisions! There is no cut-off age for consent. Assessment of capacity is made on an individual basis to decide whether the child is mature enough to make their own decisions.

Wins & Losses for Civil Rights

Quickly, I want to recognize today as an historic one for tolerance in the US. As the American people elected their very first black president in Obama, one could not help but celebrate the immense leaps that have been made for the civil (and basic human) rights of blacks in America. Today feels like a monumental accomplishment for a movement that was started before I was born.

And so, it seems surprising and paradoxical that while the American people were busy affirming rights for blacks, they were simultaneously stripping them from another group. In California yesterday, voters passed a constitutional ban on same-sex marriages. Effectively, this now decreases the number of states where same-sex couples can get married from three to two. As far as I can tell, there’s still uncertainty over what’s to become of those couples who were already married during the period of time that same-sex marriage was legal in California. I believe that California’s decision yesterday violates the civil rights of gay and lesbian people, and shows a residual lack of tolerance.

On the road to tolerance and civil rights, today marks a definite high point. But it’s not the peak, and there’s certainly a lot more climbing to do! In Canada, as well as the US.

Morality Beyond Legalism

Although it’s been released for almost a decade, I only just saw the movie ‘The Cider House Rules’.

I found the movie engaging, thought-provoking, and tasteful, but inconclusive. It’s a coming-of-age story – a genre that I am consistently drawn to. I am moved deeply by stories that tell of lost childhood innocence and the subtle discovery of evil and mortality. Growing up is falling from grace, departing from Eden. A quote from the movie:

Adolescence, is it the first time in life we discover that we have something terrible to hide from those who love us?

In ‘The Cider House Rules’, Homer’s place of innocence is one with ideals. He follows a moral code that is absolute. After setting out from an orphanage to “discover the world”, Homer’s moral philosophy becomes fuzzier. He lands himself in twisted situations where he is forced to break his ideals to “do the right thing”.

In the apple orchard’s cider house where Homer works, a set of rules nailed to the wall serves as a metaphor for the absolute moral code implemented from above. The cider house rules are often irrelevant and unhelpful. A single set of rules lacks any versatility to function within the changing complexities of real-world decisions. One character says of them:

Well, someone who don’t live here made those rules. Those rules ain’t for us. We are supposed to make our own rules. And we do. Every single day. 

The message is one that I agree with – that morality must go far beyond an absolute list of rules or ideals. There exist decisions that have no right answer, with which legalism will be useless. We need something else guiding our decisions for when the rules aren’t appropriate.

What’s missing from the movie (why I said it was inconclusive), is a suitable alternative to legalism. What then, should we base a moral philosophy upon? Homer opts for civility, generally trying to do what is useful and beneficial for those around him. But I find that somewhat flakey, because whose benefit comes first, and what is considered useful?

When up against a moral dilemma, what guides your decision? Do you follow an absolute set of rules; do you believe that it is possible to do so? What’s the magnet pulling your moral compass?

Henry Morgentaler

You’ve probably heard the story: Henry Morgentaler is a long-time campaigner for the rights of women to choose an abortion in Canada. When awarded the Order of Canada on Canada Day this year, many people objected, including some former recipients who returned their own awards. They claim that the Order of Canada should be reserved for civilian heroes of our country that unite, rather than divide, us.

Without broaching a debate of abortion ethics, I would suggest that Dr. Morgentaler deserved the award. He brought the discussion of abortion into our courts and the public eye. And it is a argument that needs to happen. It concerns the rights of our citizens (both mother and child), and the government’s duty to protect those rights. Morgentaler defended only one side, but in doing so he demanded that abortion be given a fair trial. He made Canadians consider the fundamental questions of when consciousness begins and what makes us human. Regardless of the personal verdict that you reach, the careful consideration of evidence on these issues is a perspective-gaining and self-defining exercise. For a person, and for a country too.

As for the Order of Canada being unifying, rather than divisive, I think it is a mistake to equate unity with unanimity. There is nothing special about being united on issues that we all agree about. Rather, courageous unity is expressed by how we handle our disagreements and negotiate conflict. If we stand determinedly together to face challenging questions, more patriotic to our Canadian identity than to the defense of a cause, then that is true unity.

What’s your take?