Introduction

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?