Introduction

Edwin J. Bernard
Published: 18 July 2010

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When it comes to sex, with its potent elements of need, want, trust, passion, shame, fear, risk and heedlessness, normal and reasonable people simply do not always follow public health guidelines. With the best of intentions, they may make assumptions and avoid issues or just hope for the best. HIV is a risk, but it is balanced in both parties' minds by the possibility of pleasure, excitement, closeness, material or social gain, and maybe love. That is what most people do... But in court we look back with a clinical harshness of the lawyer's eye on the complexities of these transactions and I do not believe that it is proper for the law to do so. It is simply unfair to judge people, particularly a more or less arbitrarily selected small segment of the population by the legal standards of sexual behaviour that bears little relation to the standard of behaviour in real life.

Justice Edwin Cameron, South Africa Constitutional Court, 2008.1

Studies from a wide variety of settings have found that the overwhelming majority of HIV-positive people aware of their HIV status do not want to transmit HIV and believe that either safer sex practices or disclosing their HIV-positive status to their sexual partners, or both, is the right thing to do.2,3,4,5,6,7

Focus group members...believed that they had a moral obligation to protect all sexual partners (whether informed or uninformed) from contracting HIV. As one man said: "You’re not only infecting that person, you’re infecting that person and their future [partners]...so it’s on your conscience that you have to use protection." A female member of another focus group summarized the prevention ethic from her perspective. Even if an at-risk person requests unsafe sex,"...the [HIV] positive person should take the responsibility and say ‘Baby you be wearing a condom.’" A member of the third group was even more adamant. When asked how she would respond if an informed, at-risk partner wanted to have unsafe sex she said, "Don’t let the door hit you in the watchimacallit on your way out..." (Thirty-one people with HIV discuss the ethics of responsibility, Michigan, United States, 2009.2)

However, as the rest of this chapter explains, there can sometimes be a gulf between intention and practice.

The contents of this chapter concerns itself with two separate but linked areas of responsiblity for HIV prevention:

  • Responsibility for HIV-related sexual risk-taking, which is the type of behaviour most often at issue in cases of alleged HIV exposure or transmission.
  • Responsibility to disclose a known HIV-positive status to a sexual partner prior to sex that may expose that person to the virus.

The term 'responsibility' can have different meanings and is often confused with 'blame'. When an individual seeks to take responsibility for HIV prevention (by reducing the risk of HIV exposure during a sexual encounter or relationship) this is a proactive way of operationalising responsibility. When an individual seeks someone else to blame or hold to account when HIV exposure has occurred, this is a reactive way of operationalising responsibility.

Assigning responsibility for HIV prevention involves balancing moral and ethical considerations of right and wrong with practical issues of individual capacity, social context and unintended consequences. While HIV-related sexual risk-taking and/or non-disclosure may to some degree reflect a rational weighing of responsibility against self-interest, it often involves a number of other factors as well.8,9,10

These include:

  • Denial (of HIV-positive status and/or that the sex is an HIV-related risk) as a self-protective mechanism

  • Desire for sexual pleasure and emotional intimacy

  • Fear of rejection or harm

  • Lack of control over sex, or risk-reduction methods

  • Uncertainty about how and when to discuss HIV with sexual and long-term partners.

Consequently, casting the issue in moral and ethical terms alone may be an oversimplification of the behaviour that leads to HIV-related sexual risk-taking and/or non-disclosure. One cannot necessarily assume that every action is preceded by rational thinking about what is ‘right’, which then in turn leads people to behave altruistically and responsibly.  Nor can one assume that every “irresponsible” behaviour is a conscious rejection of responsibility in favour of self-interest.

The purpose of this chapter is to highlight the tensions between the criminal law's approach to responsibility for HIV prevention and the lived experience of being HIV-positive and negotiating sex and relationships. How this, in turn, informs people’s perspectives on responsibility for HIV prevention – and its implications for public health – will be examined further in the chapter: Impact.

This chapter is organised into the following sections:

  • How the criminal law approaches responsibility

  • The ethics of responsibility

  • Factors affecting HIV-related sexual risk-taking in people living with HIV:

    • Making sense of an HIV-positive diagnosis

    • Denial

    • Mental health

    • HIV-related risk-reducing strategies used by HIV-positive individuals to protect HIV-negative partners

  • Challenges associated with disclosing one’s HIV-positive status

  • Miscommunication resulting from indirect disclosure

  • “Positive prevention” and its implications for responsibility

  • How might responsibility be better allocated?

References

  1. Cameron E HIV is a virus, not a crime: Criminal statutes and criminal prosecutions – help or hindrance? Plenary session, 17th International AIDS Conference, Mexico City, 2008; available at www.tac.org.za/community/files/MexicoPlenaryCrim3drAug08.pdf (accessed 2 August 2010), 2008
  2. Galletly CL and Dickson-Gomez J HIV sero-positive status disclosure to prospective sex partners and criminal laws that require it: perspectives of persons living with HIV. Int J STD AIDS 20 (9): 613-618, 2009
  3. Bourne A et al. Relative safety II: risk and unprotected anal intercourse among gay men with diagnosed HIV. London: Sigma Research, See www.sigmaresearch.org.uk/files/report2009d.pdf, 2009
  4. Wong LH et al. Test and tell: correlates and consequences of testing and disclosure of HIV status in South Africa (HPTN 043 Project Accept). J Acquir Immune Defic Syndr50(2): 215-22, 2009
  5. King R et al. Processes and outcomes of HIV serostatus disclosure to sexual partners among people living with HIV in Uganda. AIDS Behav.12(2): 232-43, 2008
  6. Deribe K et al. Disclosure experience and associated factors among HIV positive men and women clinical service users in Southwest Ethiopia. BMC Public Health 8: 81, 2008
  7. Stevens PE and Galvao L “He won’t use condoms” HIV-infected women’s struggles in primary relationships with serodiscordant partners. Am J Public Health 97 (6): 1015-1022, 2007
  8. Weait M Intimacy and Responsibility: the criminalisation of HIV transmission. Abingdon, Oxon: Routledge-Cavendish, 2007
  9. Adam BD Infectious Behaviour: Imputing Subjectivity to HIV Transmission. Social Theory & Health 4(2): 168-179, 2006
  10. Klitzman R and Bayer R Tell It Slant Sex, Disclosure, and HIV. Studies in Gender and Sexuality 4: 227-262, 2003
This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.
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This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.