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July 23, 2008
More Law in the Bedroom
In a recent post, I described a Swiss case of "negligent HIV transmission" in which the victim's failure to insist upon protected sex was deemed irrelevant to the defendant's guilt. Justice Edwin Cameron of South Africa wrote me: "I know this is a very ‘African’ point that ... I have been harping on, but I would have added a short observation to the first part of your discussion of the Swiss case that, it is signal that unlike in Africa, no one has suggested that the woman in the sexual encounter was less empowered than the man to take a full part in equal sexual decision-making."
Point taken. In the Swiss case, there seems to be no question that the complainant was perfectly free to insist upon condom use, and was not (as we sometimes see in these cases) convinced to forego protection by a false assurance from the partner that he was negative. There is, indeed, evidence that she normally insisted upon protection and no evidence that it was even considered by either partner in this relationship. Both clearly knew the risks of HIV and both, being conservative, could not rule out that one of them was infected. But the court just decides that doesn't matter: the defendant was legally responsible since he knew more about his past exposures than she did. Quite a fine legal balance there, which would seem to require the law (and sex partners) to draw some complicated, fact-senstive legal lines in addressing their potential "sexual liability." Advice: always bring a lawyer to bed.
Posted by Scott Burris at July 23, 2008 05:32 AM
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Comments
I agree that the power differential is an important consideration in assessing civil or criminal liability for infecting another with HIV. I would add that on some level this power differential is a function of the biological mechanics of sex (or at least our cultural interpretation of those biological mechanics). The would apply in both the context of heterosexual and male homosexual sex. One way of addressing this problem might be to impose a standard of consent similar to the standard used to evaluate if sex is consensual. One of the salient questions here is, how many times must the receptive partner demand that the "active" partner wear a condom before the active partner has acted in a way that will make him presumptively negligent if he communicates HIV to the receptive partner. For the sake of drawing a clear line, I would argue that a "No means no" standard be applied and that if the active partner would reasonably know that the receptive partner was demanding that he wear a condom, even once, that he is negligent for not doing so. I couldn't help but notice that in the Swiss case the victim was charged with "failure to insist upon protected sex." Is insistence necessary? If we conclude that insistence is not necessary and we apply a consent-like standard, how can we create a manageable rule without getting muddled up in endless ambiguity? It seems that a bright line rule is appropriate, even if it means forcing the active sexual partner to bear more of the onus for the decision about using the prophylactic. However, even the approach I am suggesting is not nearly as harsh as the approach applied by the court in this Swiss case. One other thought: how does the existence and availability (at least in the U.S.) of the "female condom" influence this question about negligence for HIV transmission?
Posted by: Shane Hartman at July 23, 2008 05:21 PM
"Advice: always bring a lawyer to bed."
You mean, like this?
http://www.glumbert.com/media/consent
Posted by: Kaimi at July 23, 2008 05:43 PM
Ha...great video. I guess there is hope in this dismal job market for recent law grads like myself after all.
Posted by: Shane Hartman at July 23, 2008 05:47 PM
I agree with the court on this one. Just as it is the individual's responsibility not to shoot people, it is the individual's responsibility to know their own infection status and not put others at risk, regardless of whether said other asked or not. To engage in sexual activity with people without using protection when one is HIV positive (or a carrier of any STD for that matter) is, at least, reckless endangerment. This is less a matter of a government sticking its nose into the bedroom, and more one of a government demanding a modicum of personal responsibility from its citizens.
Posted by: Julian at July 25, 2008 08:22 AM
