Blind magic:
Legal spellwork, sexual assaults and the
circumscription of serodiscordant sex
© Connor Steele, M. A. & Linda Steele, R. N., C. N. P. C(C)
So
we are all on the same page, here is the summary from the case of R v Mabior. The defendant was convicted
of six counts of aggravated sexual assault, after six women had retroactively
learned of his status and filed the complaint. All of these charges were
overturned by the Manitoba Court of Appeal, on the grounds the accused had a
low viral load and/or used a condom. And the Supreme Court overturned two of
the convictions and restored the other for in which the two criteria of low
viral load and condom protection use were not satisfied.
Failure to disclose one’s HIV status in the context of sexual intercourse
can warrant the charge of aggravated sexual assault. This charge carries a
maximum sentence of life imprisonment, and mandatory listing on the sex
offender registry. Canada has one of the world’s highest criminal sanctions for
HIV nondisclosure and one of the most difficult standards to avoid conviction.
(Patterson et al. 2015, 2) According to the court, this charge is just for two
reasons. First, the risk of HIV infection constitutes potential for serious
bodily harm within the context of sexual intercourse (para 85). Second, the
sexual act is retroactively defined as non-consensual; for it deprives the
HIV-negative partner of informed consent about the risks she is willing to take
in managing her erotic activity (para 2). Such charges can be negated if there
is not a “realistic possibility of transmission”. Within the context of
penetrative vaginal intercourse realistic possibility is negated when the
accused has a low viral load and condom protection is used (para 95). The
decision is inconclusive as to under what conditions cunnilingus, fellatio, or
anal intercourse may pose a realistic possibility. Owing to this confusion,
however, we would advise utmost caution. In these areas of the law, as, alas,
in areas where there seems to be a clearly logical answer, much depends on the
individual temperament of the judges and prosecutors involved. We contend that the
court, and perhaps society at large, is still motivated by a superstitious theory
of illness, and that this contradicts the common assumption that law and
healthcare have become secular undertakings
So let’s begin by asking a very
obvious question which requires more clarity and unpacking. That is, why should
nurses have a detailed understanding of HIV nondisclosure law. Three answers
immediately come to mind. First, nurses must practice within the guidelines
prescribed by law and advise clients to do the same. Second, they must be aware
of the law in order to provide the greatest amount of choices to clients.
Third, they can become proxy agents of law enforcement, when called to testify
if they advised clients about the conditions under which they are obligated to
disclose their HIV status, for example; and, for this reason, providing advice
and receiving honest information from clients regarding their sexual behaviors
can present their own set of nursing ethical dilemmas (Mykhalovskiy
2011, 673; Patterson et al. 2015, 6). These
reasons are interrelated with the fourth one we shall highlight today.
We will
discuss with you the broader ideological messages laws communicate, their
history (specifically related to the regulation of and changes in what we have
come to call sexuality and sexual behavior), how such stigmatizing attitudes
circumscribe the practice of HIV nursing, and what are some empathetic ways to
practice nursing with better knowledge of how such stigma infects our highest
court in an age that allegedly has a non-moral attitude toward illness. We will
first contextualize the decision, by means of historical analysis and insights
from queer legal theory. From there, we will demonstrate that the rhetoric of
sexual quarantine lives on in the Supreme Court decision, and show how the
discourse of gender equality conceals a much more sinister and irrational
program designed to discourage status discordant relationships. Furthermore,
while claiming to emancipate innocent victims, the decision has the potential
to place many others in harm’s way. The court seeming disregard for
proportionality and security of person, as they apply to PLWHA’s in this
context, contradict the rationality which allegedly governs law and medicine.
We should pay attention to law because it is one of the dominant ways of
understanding the world through which our litigious society attempts to
communicate some of its deepest aspirations and denied inconsistencies. In this
society lacking a common religious system, adhering to secular law offers
citizens inclusion and pride; for they are allegedly participating in the norms
which ought to govern all civilized peoples (Berger 2014).
Straight medicine:
rationality and sexual governance
To
rehash familiar ground for most of us — while not denying an objective
component to disease processes, for nearly forty years much scientific research
has question the popular split between mind and body, in favor of an
interactionist approach. There are three things that follow from this approach.
First, the boundary between what is considered natural and what is considered
cultural is not fixed. Second, rationality is always already affected by
affect. Third, client wellness cannot be divorced from social location and or
sources of physical/ideological constraint (Prinz 2014; Greene 2013; Pagel 2013;
Damasio 1994). We know as nursing professionals, from both research and
experience, that even something as seemingly visceral as pain, a sensation that
reminds us of our brutal embodiment, is culture, context, and client dependent
(Morris 1991). We also believe that the meaning of sexuality and sexually
transmitted
Infection depends on power relationships and
is not fixed. The idea of sexuality is a particularly modern invention that is
said to communicate important truths about ourselves to ourselves and to
others. Hence, while all societies exhibit erotic behavior, not all societies
have the concept of sexuality (Blank 2012; Helprin 2000; D’ Emilio 1993; Butler
1990; Foucault 1980). This is not to say that categories of sexual identity are
in not some ways contiguous with earlier lists of licit and illicit erotic
activities/propensities (Jordan 1998).
Rather, we are suggesting that our contemporary age has come to see
sexual activity as indicating identities; and these identities, in their turn,
reveal to us innermost truths about ourselves and our (im)proper relationship
to the social body writ large. Indeed, we follow Eve Sedgwick in contending
that “[v]irtually any aspect of modern culture is incomplete without
understanding the crisis of homo/hetero definition…” in which sexual and gender
variations are understood as problems facing particular constituencies as well
as a universal problematic of subjectivity (1990, 5-10).
But it is precisely because traditional gender norms and heterosexuality
are logically inconsistent that they gain rhetorical force. They are
Hydra-esque. They mutate with context, and once one is able to logically
dismantle one supporting proposition, another rises venomously to take its
place (Helprin 1997, 121). This is not to deny the considerable advancements we
have made toward LGBTQI+ equality, nor is it to denigrate sexual expression
between those of the opposite gender. Yet it is to suggest that Canadian
liberal and/or legal discourse still assumes heterosexual, infection free,
egalitarian, rational, single partner, and monogamous sex as the “common-sense”
moral norm intended to produce the consent of the governed (Cosman 2007;
McDougall 2000).
This standard is informed by the
propriety codes at the heart of liberal political thought, it self having very
strong roots in the Protestant Reformation. Although rooted in earlier
standards of morality, liberalism attempts to differentiate itself from
Christian ethics, by transforming private vices into public virtues. For
example, greed becomes industry, and lust becomes sentimental and monogamous
cohabitation (Clarke 2000, 2). By this mechanism, citizens gain
(heteronormative) recognition by tacitly agreeing to participate in a rigidly
defined 18th-century notion of public respectability. It does not
matter that such beliefs originally condoned things we now find horrible and
were born of an atrocious colonial context. The central dogma of liberal
enlightenment is humankind’s progressive capacity for self correction. Things
like slavery, the oppression of women, and the violent regulation of diverse
sexual expression are, therefore, often characterized as unfortunate
ideological gunk masking liberalism’s “real” emancipatory kernel (Richards
1988). When citizens become emancipated through rational self-governance, the
liberal project is further actualized.
From this discussion, we can see how the PLWHA, even if monogamous and
heterosexual, and even if she abstains from all forms of recreational drug use,
cannot be the full citizen imagined by liberal political theory. She is either
tainted by the sign of her own irrational and excessive pleasure (by means of
stereotypes about drug use and promiscuous sexuality), or she is tainted by
association, becoming a tragic victim of another’s excess. To understand this
further, it is worth reviewing the theological and anthropological factors
which contributed to the rhetoric of the early HIV-AIDS crisis. We believe this
is necessary because an understanding of Canada and the place of HIV-AIDS
within this specific national community is impoverished without a cursory
acknowledgment of our nation’s historic and ongoing Protestant-Catholic
tradition and the latter’s effect on social policy (Beaman 2003). We use magic synonymously
with the social construction of superstition, we have the idea that primitive
societies are governed by superstitions while we are governed by policies and
procedures. Nevertheless, it is not so easy to parse pre-reflective attitudes
from deliberative science, law, and healthcare. We tend to think of world
religions like Christianity as separate from superstition, especially when some
of the values it espouses are so uncontested as to be un-thought. Yet Christian
ideas about the body emerge from a culture suffused with magic and
superstition.
Jesus is a top: “sodomy,”
“Christian tradition,” and HIV-AIDS
In his seminal essay, “Is the Rectum a Grave?”, Leo Bersani (2009) argues
that though contemporary society likes the pleasure accompanying sexual
activities, many persons are intensely
uncomfortable with the idea of sex
(10). Gayle Rubin (1993) attributes what she calls general Western sex
negativity to vestiges of Christian attitudes (11). Erotic behavior is often
invested with hyper significance and becomes metaphoric of larger social
tensions (Rubin 1993, 4). This is, at least in part, caused by Christianity’s
tendency to use the body as its primary signifier. Christianity is built on the
concept of incarnation, which would seem to allow for very carnal theology.
Nevertheless, this possibility is always held in tension with Augustine’s
Manichaean solution to the problem of evil: Christ’s body may have come to the
world, but ordinary human bodies are corrupted by the scars of sin and,
thereby, cannot resemble Christ’s body this side of the grave. Yet in
Christianity there is also often a concern that human beings may injure the
divine order further, and, sometimes, this idea extends to the imagined body of
God himself. For example, St. Paul says that Christians should not have erotic
liaisons with prostitutes because the parts of their individual bodies are
linked to their whole bodies, which, in turn, are linked to the communal body;
and these, finally, are part of Christ’s body (I Cor. 6.9-20; Martin 2006, 40).
A product of his Hellenistic Judaism, Paul’s view of the body combines
Greco-Roman notions of masculinity and ascetic cultivation with Jewish notions
of divine taxonomy as defined in the holiness code of Leviticus. (Lev. 18.22;
Douglas 2003a, 66) Paul finds male-male anal intercourse reprehensible. It subverts
the gender hierarchy ordained by God. As human beings are subject to God so too
is woman naturally subject to man; for a man to assume the perceived passive
sexual role is equivalent to a blasphemy because it subverts the prescribed
hierarchy in God’s creation (Rom. 1.26- 28; More 2001, 147). Paul’s conviction
on the matter becomes clearer owing to his belief that male-male erotic
behaviour is a punishment for idolatry. In Paul’s Pharisaic imagination, the
punishment must suit the crime: Gentiles, prostituting themselves to the wrong
gods, become enthralled by unnatural desires.
Paul believes the punishment these persons receive is the mark of effeminacy
that male-male intercourse leaves on both partners. This is why Paul links
male-male prostitution with effeminacy in 1 Cor. 9 and cannot suffer such
persons to be in his new communities; their sexual vice corrupts the Christian
body politic as a whole. Unlike other sexual vices, which use sex for its
proper function but to the wrong degree, male-male erotic behaviour is the
preeminent sexual vice because it defiles the intention of sex altogether. In
short, the effeminate perform heresy on several registers, and this heresy
threatens to corrupt the entire community. Substance use is also prohibited
because it corrupts the natural beauty of the body. Although discourses of
sodomy and drug use are immensely complex, many of the tropes one finds in Paul
persist to the present, especially when discussing the connection between
male-male erotic behavior and HIV-AIDS.
HIV-AIDS was originally called GRID (Gay Related Immune Disease) because
it was discovered among North American populations of men who have sex with
men. Already a despised minority group who enjoyed limited freedom since the
Stonewall riots, the discovery of a “gay cancer” raised theological
condemnation to a new shrill pitch. Homosexuals were not part of the general
public. Instead, they were outside it and constituted the vary contagion that
could result in its undoing (Watney 1997, 43). The HIV-AIDS panic rehashed
familiar tropes of diseased feminized bodies, and, as Bersani suggests, the image
of an HIV victim who willingly spreads disease became paradigmatic for the
perils of prurient feminine sexual excess. This imagined male diseased body
caused the general public to contemplate
an insatiable butt, whose unquenchable thirst for semen not only scorned
heteronormativity, but could destroy the heterosexual population by dint of
desire for death — the ecstatic and suicidal desire to be penetrated like a
woman (Bersani 2009, 15). Concomitant with this image, the public was presented
with the stereotype of a tragically addicted junkie, who would infect the
general population for the sake of his habit.
It is also important to keep in mind the link between stigma and blood.
Julia Kristeva argues that abjection is a process in which affects become reified.
One of our most prevalent fears, in contemporary patriarchal society, is the
dissolution of the boundary separating what is inside our projected body from
what is outside (8-10) because it reminds human beings, and men especially, of
union with the mother (12). Blood is an abject signifier when it crosses the
boundary of our bodies. Men who have sex with men and drug users are,
therefore, not only abject — at least under heterosexist conditions — because
they are penetrated like women; they are also abject because sodomy, drug use
and HIV-AIDS are associated with blood, semen and feces. And, of course, this
discursive piggybacking is made all the worse by the frequent pairing of blood
and curses in the Hebrew Bible. Nevertheless, the relationship between blood
and Christianity, especially apropos of sex, is never quite sanguine; for
images of blood and suffering take on a positive valence in martyrdom
narratives as well as ritual enactments .
Anything but(t)
promiscuity: HIV-AIDS, risk, and redemption
We believe this motif of suffering and
redemption help to construct the dichotomy of the good/bad PLWHA. The good PLWHA
came by his condition through “a tragic accident” and or misunderstanding, not
through higher risk behavior. He unfailingly and correctly takes medication,
and with great discomfort and expense. He has the resources to pay for is
treatment, and so is not a burden on the public purse. He is able to maintain
productivity and social participation through the help of the ASO, provided by
the major Canadian city in which he lives. His current partner is also a PLWHA
and they have been faithful to each other, since the misfortune of their
diagnosis. Hence, there is no risk of transmission. And for their own peace of
mind, as part of an effort to take responsibility for their new lives with this
condition, they scrupulously monitor their viral load, are aware of paramedical
interventions, eat a healthy diet, and exercise regularly. Furthering their
redemption, on the weekends the couple volunteers at an urban center for at
risk youth. They provide firsthand advice about safer sex, so that the younger
generation will not make the same mistakes.
They would never dream of nondisclosure (were they to be intimate with
another person, even with a low viral load and condom protection. They do not
let their fears of rejection, violence, reprisal, and/or diminished social
status distract from their obligation to disclose. Indeed, even if they were
not legally obligated, they would feel morally compelled, owing to their
misfortunes. Thus, they are able to turn an otherwise unfortunate affliction
into an object lesson in moral citizenship. The bad PLWHA is someone who is not
responsible. He is not affiliated with an ASO. He does not learn from his
experiences. He continues to engage in high-risk behaviour, which increases his
risk of coinfection. His sexuality and/or drug use is not contained and
therefore he poses a greater risk to others. We are not so foolish as to
suggest that any PLWHA falls wholly within either of these stereotypes. Yet it
is useful to create a kind of caricature spectrum in order to appreciate the
implicit reasoning that empowers much higher-level judicial discourse around
HIV/AIDS.
The work of anthropologist Mary Douglas can be used telescopically to
focus this analysis further. She argues that though dangers are indeed real
phenomena, they are always used for political aims (Douglas 2003b, 5). She
vehemently opposes the idea that modern societies have transcended taboo. She
argues that taboos have merely undergone a transformation and that the
traditional forensic theory of rule violation and moral retribution lives on in
the concept of risk (Douglas 2003b, 4). Originally a neutral term from
gambling, which implied either a high probability of gain or loss, risk is now
most often employed to signify simple danger (Douglas 2003b, 24). Hence,
Douglas sees great continuity between the language of risk and the language of
sin and taboo. Yet, she notes two key distinctions: first, the language of sin
aims at remonstrating a harm done to the social collective, whereas risk primarily
focuses on harms done to other individual agents. Second, the language of sin
is articulated in a theological mode against a perceived objective moral
standard, whereas the language of risk is afforded legitimacy by its
articulation in an often suspect scientific idiom.
Consequently, Douglas sees risk as the perfect moral language for the
modern age: it protects individualism by making every agent a potential victim
of her fellows, and it appeals to our love of technology by articulating
judgement through a seemingly global language (Douglas 2003b, 23). Thus,
instead of defining unprotected anal intercourse or intravenous drug injection
as morally reprehensible sins, harmful to both the divine order and the agent
who partakes in them, they become high-risk behaviour, which must be
quarantined to protect the safety of others. To be clear, we are not endorsing
either of these behaviours in many contexts, nor are we suggesting that society
should not take steps to encourage other behaviours. We merely wish to point
out the rather obvious fact that determinants of risk are also highly
subjective and carry with them moral judgements. Although HIV is a serious,
sometimes life-threatening infection, no other form of sexual deception is
punished as severely in Canada (Buchanan 2015, 1238).
Despite or perhaps because of better treatment for HIV infection, there
has been a marked increase in HIV nondisclosure prosecution since 2004, which
Mykhalovskiy and Betteridge (2012) attribute to the following: first, growing
concern about the containment of the disease as PLWHAs live longer and appear
as normal citizens; second, a general increase in public support for
retributive justice and judicial conservatism against the backdrop of
neoliberal discourse about austerity and self-government; third, an increase of
sensational reports of racialized minorities infecting innocent and
unsuspecting women (Mykhalovskiy & Betteridge 2012, 44). Somewhere between
60 to 70 per cent of all nondisclosure cases involve a heterosexual man infecting
or potentially infecting his female partner (Buchanan 2015, 1238.) It is here
where our discussion of heteronormativity as a regulatory system becomes
especially important. It seems that the HIV cases that garner the most public
attention and sympathy from the courts are ones that transgress the boundaries
of “traditionally” affected populations.
We realize that this is a provocative claim, and in order to be
substantiated, it must be researched further. Nevertheless, one can make this
claim by simply pointing out that if the punishment of reckless transmission is
such a problem, the sharing of unsanitary needles should carry much more of a sentence.
Indeed, it would be a much more immediate way of using the law in an attempt to
circumscribe the possible risks of nondisclosure. Obviously, from the beginning,
there were responsible and courageous people, who responded to the epidemic
with humanity and dedication, and much work has been done to challenge the
discourses of the early epidemic. PLWHA’s and their loved ones, both around the
globe and in Canada, have done tremendous and path breaking work to become not
just victims of disease, but full agents in their own right. Because of this
work, the movement on behalf of PLWHA’s in Canada has had much success and continues
to evolve.
Nevertheless, entrenched cultural
attitudes do not simply disappear. PLWHA’s are still highly stigmatized as are
the groups most associated with them. Though it may seem that steps toward LGBT
equality have removed some of these, where there is resistance there is also
constraint. The court has advanced queer equality by removing the sexual
content from queer lives. They are now included in the Canadian mosaic as a
cultural group, partially defined by its history of victimization, so long as
the “responsible” members of the community exchange this criterion of
representation for the very thing that marks them as different in the first
place. In other words, they will be included if and only if they accept 18
century norms of sexual propriety and domesticity with a 21st
century Canadian facelift (Blanc 2014; Puar 2007; Valverde 2006) likewise, the
sex-trade is subject to incredible and confusing ideological pressure — at once
valorized and denigrated. Similarly, drug users are objects of pity, but only
as compulsive and vulnerable victims with a disease. And racialized minorities
with higher instances of the disease — indigenous peoples and members of the
African-Caribbean-black community — are to be assisted, so long as they do not cross
the quarantined order of domestic whiteness.
Spellbound by sexual
assault: the new discourse of legal quarantined
Let’s
examine the logic of the case in greater detail with such thoughts in mind. In
her opinion for a unanimous Supreme Court, Chief Justice MacLachlan opens her
judgment by criticizing the defendant for keeping a “party house,” in which
many instances of sexual intercourse took place (para 3). What is more, such
exchanges often took place with women who were much younger than the defendant,
“more vulnerable,” and intoxicated (para 72). Chief Justice MacLachlan is
concerned that there be predictability as to what constitutes a criminal act,
since the previous HIV nondisclosure case had two weaknesses — it did not
provide a sufficiently detailed analysis of why this charge falls under
aggravated sexual assault, even when no harm occurred, as in this case; and it
did not provide sufficient specification as to what constitutes a significant
risk. Chief Justice MacLachlan believes that the integrity of the rule of law
requires her to clarify these issues (para 14).
She says that just criminal law must only punish morally blameworthy
acts, which have two components, a guilty mind and morally blameworthy action
(para 24). In the case at bar, the defendant’s principle crime was treating his
sexual partners as objects because he did not devolve information to which they
had a right (para 49). Such information was necessary for these women to make
an informed choice about how they wish to use their bodies in relating to other
persons as equals. Had the defendant recognized the autonomy and dignity of
these women, he would have given them an opportunity to engage in an
individualized risk assessment. The defendant, therefore, runs afoul of
“charter values” which guarantee that public citizens have the right to make
private choices regarding their bodies (para 45). Furthermore, Chief Justice
MacLachlan seems to imagine citizens ideally making rational, deliberative, and
utilitarian sexual choices, while frankly acknowledging it does not happen like
this in the heat of passion. Indeed, Chief Justice MacLachlan believes that
this is part of the reason we need such stringent sexual assault law. Without
these restrictions, patriarchal control over women’s bodies is gainsaid (paras
35-40). In particular, the Chief Justice rejects the older line of common-law
reasoning that says vice is its own punishment, so the infectious status of a
partner does not vitiate consent to intercourse, in favor of a more liberal
argument, premised on female choice, equal dignity and risk management. The
irony of this sex positive strategy, however, is it follows a species of
Orwellian logic. All sexual subjects are created equal, but some are more equal
than others. Though it may liberate many HIV-negative women, it certainly does
not contribute to the social advancement of those who are positive (Patterson et
al. 2015, 3-5)
For similar reasons, she criticizes other common law jurisdictions for
not going far enough to protect the sexual autonomy of citizens by punishing
nondisclosure under aggravated sexual assault laws (paras 55-60). She is also
not persuaded by the argument that the over criminalization of HIV
nondisclosure is a bad public health strategy for two reasons. First, she does
not think it has potential to create complacency in the general population, by
reassuring them that all positive people must disclose their status (if
dangerous), under threat of imprisonment. And she rejects what she sees as the
false distinction between active deception and withholding information,
invoking the trope of the trusting wife who is infected by her fornicating
husband to justify her argument (para 64). Second, her moral convictions about
risk and patriarchal violence cause her to discount harm reduction arguments.
Citing only one study, she concludes that there is little evidence that
punishment for nondisclosure decreases HIV testing (para 63).
Nevertheless, given the stigma surrounding HIV and the fact that a PLWHA can
only be prosecuted if he has knowledge of his status, this is an intuitive
assumption. Granted many of us are highly concerned for our health and the
health of others, and we participate in an ethos of regular STI testing. Those
of us who work in clinics, however, understand how difficult it is to foster a
positive picture of health against a culture of stigma, shame, and fear.
Committed to her belief in universal morals, Chief Justice MacLachlan also
rejects the idea of a context-based approach to determining criminal liability,
once again invoking predictability as the justification. Yet she failed to
consider that as central strategy of treatment as prevention, which has been
shown to reduce HIV transmission, is the repudiation of social stigma (Patterson
et al. 2015, 3)
With respect, several lines later she contradicts her commitment to
rational principles. While she is troubled that the defendant victimized women
and treated them as objects, she is not bothered by doing this to the
defendant. She says that the law cannot apply a contextual approach in
nondisclosure cases: without a clear standard, there would be unacceptable costs
for both the prosecution and the defense, as judges disagree in appeal and
cross-appeal. Such uncertainty would be unfair to the defendant. Certainly, we
grant the point of the Chief Justice. Yet years of incarceration for a
non-malicious crime with no negative impact seems far more unfair. Remember
that in all the charges the accused had a low viral load. The old test did not
clarify what precisely was a significant risk or realistic possibility of
transmission. Given that, according to the court, the risk of HIV transmission
from receptive vaginal intercourse ranges from one in 2000-1250 and
antiretroviral therapy can bring this down as much as 89%, it seems reasonable
for the defendant to have concluded that he did not pose a significant risk or
realistic possibility of transmission. For this reason, we cannot find the
guilty mind necessary for a criminal conviction (Kaplan 2012, 1535). Nor, with
respect, can we conscience her invocation of the responsible citizen trope,
combined with the morally loaded term “affliction” (para 89).
Moreover, it seems patently unjust to retroactively convict him at the
Supreme Court based on a standard of which he could not have possibly known,
since it was defined in this appeal. We are also troubled by the use of
utilitarian arguments to supersede individual rights, when the decision places
so much emphasis on the rights of non-positive persons. Presumably, utility
should be of no consequence when the charge carries the potential burden of
life imprisonment. Though it may be politically effective to invoke a robust
conception of rights, particularly in the contemporary context that is more
attuned to certain feminist concerns, we are inclined to ask whose rights are
really being protected in this case, and we respectfully submit that the
court’s desire to protect certain women from the taint of HIV cause it to
disproportionately weighed the issues at stake.
Not everyone engages in
intercourse in the egalitarian manner that the court imagines, alas if only
this were the case. Persons in abusive relationships are made particularly
vulnerable by this new legal standard. There is an extremely high evidentiary
burden in such cases. A defendant has to prove that her partner was informed
about her status; or if she does not wish to inform her partner, that both a
condom was used and that her viral load was low at the time of intercourse. We
can only begin to imagine that disclosure is an incredibly difficult and
courageous thing to do. Yet this task is made even more difficult in
asymmetrical power relationships with which an increased number of PLWHA’s have
experience. Violence does still occur on many occasions of disclosure
(Symington 2013, 490).
The court does not take into account the context or location, or the fact
that persons do not have control over how their status is communicated once it
is disclosed. All it takes is for one power-hungry partner, and a person’s
status becomes a very strong deterrent to abandonment or disobedience.
Furthermore, even if PLWHA’s disclose their status and use a condom, we see no
sure fire way to absolutely meet the evidentiary burden, save for preservation
of the condom in question, regular viral testing, and/or a notarized contract acknowledging
the date of disclosure. Maybe the justices implicitly think of intercourse in
this way, but virtually no sexual encounter operates set to the melody of such
a rational calculus. In addition, wellness is partially determined by social
location, as we indicated above. Not every PLWHA, particularly those in indigen.ous
communities, has access to regular viral testing. Consequently, it is more
difficult for these PLWHA’s to avail themselves of the “protection” afforded by
the recent decision. Such difficulties worsen when one considers that stigma is
often greater in rural communities, and gossip tends to travel much farther and
quicker (Symington 2013, 492).
These challenges are made all the
more poignant, when one considers that a disproportionate number of PLWHA’s are
at or far below the poverty line and/or rely more heavily on gainful employment
for health insurance. Finally, the court seems unconcerned about co-opting the
medical field in its program of regulation, as well as what such draconian
requirements made due to the therapeutic relationship and confidentiality
generally required of healthcare professionals. More broadly, we believe it is
fair to say the court did not adequately consider the implication of punitive
measures on a more trusting relationship between the communities of PLWHA’s and
those of public health officials (Patterson et al. 2015, 3) Healthcare
professionals are not lawyers or moralists. Their job is to reduce harm in the
most effective way possible within a field of constraint choices. Nevertheless,
PLWHA’s have an equal right to be thought of as interdependent agents who are
vulnerable to harm and who are in circumstances that limit their choices
(Symington 2013 493-4).
Carrying in unjust
constraints
Clearly,
we wish to reduce the number of HIV infections. Criminalizing nondisclosure is
not a good way to accomplish this goal. To make positive sexual choices PLWHA’s
must live in a society that grants them a dignified identity from which these
choices flow (Patterson et al. 2015, 3). Communicating the message that having
unprotected sex with someone who has a low viral load is equivalent to life
endangering sexual assault, even when no transmission occurs, is reprehensible.
It indiscriminately labels a group of society’s most vulnerable members as its most
malicious perpetrators of violence. To reiterate, we are not trying to
exonerate the defendant, nor are we committed to the position that there should
be no punishment for undisclosed transmission of HIV, nor do we reject much of
the advancement made by feminist jurisprudence. Instead, we are suggesting that
it is a disproportionate response, implicitly designed to limit instances of
HIV infection in “the normal” population and discourage serodiscordant relationships.
Moreover, the
Court’s moralism, as expressed through vocabularies of risk and feminist
autonomy, exposes traces of earlier theological attitudes. These values are
inconsistent with more contextual approaches to feminism, harm reduction public
health initiatives, the values enshrined in the charter, and what we know about
the many strategies of HIV prevention. Obviously, it would be great if every PLWHA
practiced some form of reduced risk sex. We have been advocating that for thirty-six
years. People are still getting infected at dismaying rates. In addition to
that strategy we need others — we need a more honest approach to client
wellness that takes greater account of law and how ideology shapes client
well-being.
Nurses are obligated to tell clients
about the law. In some cases, they must even enforce laws with which they
disagree. Yet, in a democratic society, law commands obedience; it does not
require silence about injustice. We are not suggesting that nurses provide
legal advice on this topic. This action would contravene the practice
guidelines of the CANAC “Legal and Clinical Implications of HIV
non-disclosure.” We are suggesting that some understanding of the complexities
of legal oppression is required for empathetic care. We also believe that this
knowledge offers one a greater ability to determine when not to provide advice.
(CANAC 2013, 13)
Indeed, as protectors and healers of the
vulnerable, nurses have strong obligations to participate in the democratic
process, in order to speak in solidarity with those rendered mute by illness,
poverty, and stigma . One could argue that never before in healthcare has the
issue of medical-legal liability been more prevalent. As nursing professionals,
we must be ever vigilant and concerning the implications of our words and
actions towards our clients and our counselling efforts. Though one could argue
that healthcare is not protest work, we failed to see how this proposition
holds up if one takes a-social-determinants-of-health perspective seriously.
Stigma is not something external to sickness but one of its principal causes.
Hence, a very practical way that nurses can contribute to well-being in this
area is by understanding the legal reality that defines the lives of PLWHA’s.
Such awareness will allow us to have greater empathy, when we listened with a
legally informed, politically engaged and sympathetic ear and care with hands
grasping for justice. Hopefully, this will help guide clients as they negotiate
challenges to their health, while also challenging the hypocritical sexual and
substance standards that makes living with HIV-AIDS in Canada far more
difficult than it ought to be.
References
Case cited,
R. v. Mabior, 2012 SCC 47, [2012]
2 S.C.R. 584
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