Alex Blaze

Risk doesn't matter in HIV non-disclosure prosecutions

Filed By Alex Blaze | November 24, 2010 12:30 PM | comments

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I can understand why the woman in this situation would want to sue for something after government officials watched her having sex with another woman while she was drunk and in a jail cell, but this doesn't seem to be the right reason:

Kamloops.jpgBoth women were thrown in the drunk tank for public intoxication. They met there and apparently shared more than a penchant for pints -- namely, mutual sexual attraction. They became intimate with one another in the cell, in what an RCMP press release described as "what appeared to be consensual sexual contact." Seven male employees of the jail -- four RCMP officers, three employees of the City of Kamloops -- allegedly watched the encounter over closed-circuit TV cameras.

News coverage of the incident included unconfirmed reports that one of the two women "may" have HIV. So now the second woman has filed a lawsuit in BC Supreme Court seeking damages from her jailhouse paramour, the men who peeped on them, the provincial and federal governments and the City of Kamloops.

Describing herself as "horrified and scared and mad," the woman told the Kamloops Daily News that she feared for her health: "It was the worst thing in the world that could have possibly happened to me. Every day is a struggle."

As I and several other Bilerico contributors have written about before, these laws lend themselves to abuse and often the legal actors involved don't ask questions about what specifically happened or whether HIV was actually transmitted, just if something that could be labeled "sex" happened. While there are things two women could do that would involve HIV risk, well, it's unlikely.

But often that doesn't matter in these cases where HIV-positive people have been put away for spitting or other low-risk activities, and that's what the plaintiff's lawyer is arguing:

According to Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, this is the first time to her knowledge that HIV non-disclosure has been implicated in a legal case involving lesbian sex.

Contacted by Xtra, Magraken refused to specify if the harm he was referring to is, in fact, HIV. He says he's speaking "very generally" to the notion of "any kind of harm." But according to the Daily News, Magraken did argue that "if they fail to disclose they have HIV, that is an aggravated assault and there can be no consent in those circumstances."

I don't know if his case has a legal leg to stand on, but I wouldn't be surprised if this actually does result in negative consequences for the HIV-positive woman. And that's too bad, because suing this woman for someone else's irrational HIV fear doesn't really help anyone. City employees watching prisoners have sex as if they're porn actresses in a cage, though, is something that should be looked at with more scrutiny.


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We have discussed these laws before, and the unfortunate truths are: (1) these laws are not likely to be rescinded or even improved, because the public is so prejudiced and ignorant that the laws enjoy wide public support just as they are; and (2) as you point out, they are so messy that they invite abuse by a whole host of prejudicial government actors.

But I am convinced that some legislators know what they are doing when they put such laws in place: In addition to political pandering to common prejudices, they put these bombs on the books knowing full well the mischievousness they invite within the criminal justice arena, buying votes from the law enforcement hawks using a form of corruption that the public will not complain about.

Even in its purest form, and I mean its modern American form, Democracy has some problems that it cannot effectively address. Unlimited money flowing around, corrupting both the electoral and the legislative processes, is one; and draconian anti-HIV laws are sometimes another.

And I can't be too optimistic about finding a fix for either.

there are groups in canada organizing around this idiocy, particularly the Ontario Working Group on Criminal Law and HIV Exposure (http://www.ontarioaidsnetwork.on.ca/clhe/) who started working on this back in 2007.

other groups like the Prisoner Correspondence Project (www.prisonercorrespondenceproject.com) and PolitQueers, both in Montreal, have also been working on this issue.

CHAMP (www.champnetwork.org) in the states is also working on this...

get involved folks!

In the US, check out the [_HIV Law Project_], headquartered in NYC.

Your local ACLU chapter might be interested also, depending upon the particulars of your case.