Missing the point in Canada

To tell or not to tell
MARGARET WENTE

From Saturday’s Globe and Mail
April 11, 2009 at 12:57 AM EDT

Knowingly exposing others to HIV ought to be a serious crime.

Or should it?

That is the furious argument unleashed by the trial of Johnson Aziga, a man who was found guilty last week of first-degree murder. The murder weapon was unsafe sex. The thoroughly repugnant Mr. Aziga was found to have infected seven women with HIV, even though he knew he was infected, and even though he knew he had a legal obligation to inform his sex partners. Two of his victims died of AIDS-related cancers.

Peter Troyer, a 37-year-old Toronto man who is himself HIV-positive, has no doubt about where he stands. “It is absolutely reasonable to have a law,” he says. “He exposed people to a potentially dangerous virus without their consent. I wouldn’t want to live in a society that didn’t punish this behaviour at the highest level.”

But Canada’s gay and HIV-AIDS activist groups overwhelmingly disagree. They believe the law will further stigmatize people who are HIV-positive. It could lead to serious violations of people’s human rights. It will remove the onus from uninfected people to protect themselves, and may even give them a false sense of security. Perversely, it may even lead to higher rates of HIV.

“It is important to understand that there may be negative consequences if these cases are brought to trial,” argues Mark Wainberg, a leading AIDS researcher and activist based at McGill University.

The logic is that if you don’t know you are HIV-positive, you can’t be accused of its transmission.

That fear may make you more reluctant to get tested – and also more likely to infect others. People who don’t know their HIV status are the main source of new infections.

There are cultural and political arguments too.

“For gay men, the most compelling argument against the criminalization of HIV is the propensity of those who hate us to use AIDS fear as a weapon against our civil liberties,” insists Sky Gilbert, a well-known gay-rights firebrand. He thinks the activist establishment should have demanded that Mr. Aziga be acquitted.

Like several similar high-profile prosecutions, the Aziga case involved heterosexual, not homosexual, sex. But in Canada, the politics of HIV-AIDS is primarily a gay issue. And the most passionate argument over criminalization and HIV is not between the activist groups and the general public. It’s the one within the gay community itself. At root, the argument is not about what’s best for public health. It’s about morality, and responsibility, and the legacy of the gay-rights movement.

Phillip Berger, one of Canada’s best-known AIDS doctors, has worked tirelessly both here and in Africa for more than 30 years. He’s fed up – fed up with the efforts of the HIV-AIDS establishment to evade the issue of personal responsibility.

“I think people who deliberately, deceitfully and maliciously mislead people are no different from someone taking a gun and shooting them,” he says. “They should be held accountable, not go to therapy somewhere.” He points out that the law does not criminalize HIV. It criminalizes irresponsible behaviour. “My own belief is that leaders of the AIDS establishment, who have a lot of bona fide, legitimate concerns, should acknowledge that this type of conduct is completely unacceptable.”

Dr. Berger has seen plenty of tragic stories – people whose lives and health were ruined by somebody else. He flatly rejects the argument that the law will further stigmatize people with HIV. “The landscape of struggle with HIV has been transformed in 20 years,” he says. People with HIV used to be kicked out of apartment buildings, kicked out of the Y, and lose their jobs. Today, people with HIV are represented on every AIDS committee, in every scientific body, at every hospital.

In fact, a current ad campaign, now running in public spaces throughout Toronto, suggests that the worst stigma faced by HIV-positive men is being rejected for sex by HIV-negative men. “If you were rejected every time you disclosed, would you?” says the line over a photo of two young men embracing. The clear message is: How can you blame people who are HIV-positive for not telling?

One major fault line that divides the two camps is the question of whether curbing HIV-AIDS is a personal or a collective responsibility. Of course it’s both. But the AIDS establishment has long expressed the view that it is overwhelmingly a social problem, and therefore must be addressed collectively – through better education, better access to testing, more instruction about safe-injection needle use, and more attention to “root causes” such as homophobia, sexism, racism, HIV stigma and discrimination. “Criminalization disproportionately places the responsibility for preventing HIV transmission on PHAs [people with HIV or AIDS],” asserts one influential legal group.

Not everybody thinks that’s so very wrong. Brian Cornelson, a primary care physician at St. Michael’s Hospital in Toronto, has been treating HIV-AIDS patients for 17 years. “What I tell my patients is that people who are positive have 100-per-cent responsibility to not infect others, and people who are negative have 100-per-cent responsibility not to infect themselves. If everybody took that stance, we wouldn’t have any HIV transmission.”

He too believes the position of the activist establishment is flat-out irresponsible. “They’ve put the stigmatization issue in front of the transmission issue,” he says. “For me, as a gay man and a physician, this is particularly dismaying.”

Another subtext in the dispute is the legitimacy of discussing a certain subculture of high-risk gay sex practices – one that involves lots of drugs and promiscuity. The activist establishment never brings this up, even though it plays a big role in the vector of the disease. Mr. Troyer, for one, figures the issue deserves a lot more candour. He got in trouble a while back when he publicly questioned whether offering bathhouse tours to new kids in the city was an effective prevention strategy.

The irony is that most people with HIV do behave responsibly. AIDS doctors say the vast majority are horrified at the thought of infecting someone else. But the idea of giving anyone a pass because they’re victims makes many people deeply angry.

Michael Leshner is one of them. Mr. Leshner, a long-time activist, and his partner were the first gay couple in Canada to be legally married. “The ads give people with HIV-AIDS a moral pass to infect,” he says. “Whenever you define a person or a group as victims, the danger is that you excuse away their conduct. It’s as if they have no responsibility to themselves or others.”

For him, the historic fight for gay rights was all about dignity, agency, and the right to be recognized as fully human. “You had to break the cycle of victimization,” he says. “And that meant to stand up and say, ‘Here I am.’”

In his view, even people who bear the heavy burden of HIV deserve the dignity of being treated like anybody else. “They have the right to make moral choices,” he says. “The true victimization is by people who say that gay men with HIV do not have an absolute obligation to disclose. It’s putting us back in time.”

But what about activists’ fear that the Aziga case is the start of the slippery slope? What about Sky Gilbert’s dire warning that gay men will be harassed and hounded and dragged through the courts by self-righteous agents of the justice system and vengeful former lovers? “I have more faith in the system than that,” Mr. Leshner says.

Partly because HIV is not the terrible stigma – or the death sentence – that it used to be, infection rates in Canada have been creeping back up in recent years. In Toronto, the infection rate among gay men is 24 per cent; in Ottawa it’s 11 per cent. The disagreement over how to get those numbers down has turned into something very like a schism – one that divides gay men and casts people like Peter Troyer, who was diagnosed seven years ago, in the role of an apostate.

“I think it needs to be said that if you choose not to disclose, you will not only be letting yourself down, but your community and society as a whole,” he says. “You did the wrong thing, and most importantly, wrong for you.” He doesn’t see himself as anybody’s victim. He sees himself as a fully empowered, HIV-positive adult.


Maybe because this is about heterosexualand where nobody uses condoms, but most of the article actually taps into a debate that’s raging in the gay community. The point there is not about disclosure: if you use condoms, you don’t need to disclose. — danmeek

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3 thoughts on “Missing the point in Canada

  1. What interests me here is the point that Cornelson makes about HIV positive folks doing all they can not to infect others and HIV negative folks doing all they can not to become infected with the virus. Where in that initially mentioned court case does the role of the people who became infected come in? I mean- if someone who is HIV positive “should” disclose according to Canadian law, shouldn’t someone who is HIV negative, by the same token, be legally required to ask if their sexual partner has anything that can be passed along? As someone whose community has been affected by this virus for the past (nearly) 30 years and who has worked with HIV infected/affected communities for the past 5-6 years, I refuse to see anyone as a victim or allow one community to be held responsible for transmission! We need to stop pretending that people don’t understand HIV transmission via sexual means and realize that the majority of us understand that a person ejaculating inside our vaginas and rectums has the potential to transmit infection! HIV positive people have suffered tremendous injustices since the early 1980s. Let’s not continue to penalize them unfairly for “irresponsible behaviors” when it takes two to tango. And if someone enjoys having their partner ejaculate inside them, then let them be honest about that instead of seeking criminal restitution. Our bodies are ours, not the government’s.

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