Lise Gotell’s lecture on Wednesday has been circling around my mind for the last couple of days. HIV and AIDS are two areas I’m quite unfamiliar with, so the issue of non-disclosure was completely new to me. Gotell said her argument was essentially that we should separate charges of HIV non-disclosure from aggravated sexual assault and simply treat it as assault, criminalizing only when transmission of HIV actually occurs.
I’m inclined to agree with the latter half of the statement; if transmission does not occur and the sex was consensual, no harm done, right? I am still working through the former half, though, so I started looking into what an assault charge actually looks like. There are many different kinds of assault, sexual being just one of them. To commit assault is to “apply force intentionally to another person, directly or indirectly” and aggravated assault is to “wound, maim, disfigure or endanger the life of the complainant” (Lawyers.ca). This means that you can be charged for assault even if no physical harm was done, which is something I never knew before. I think, then, I would venture to say non-disclosure in my opinion warrants an assault charge (although the word “force” here could complicate things), and transmission of HIV due to non-disclosure warrants aggravated assault. I’d like to hear others opinions on this as well, but I think it’s so important to be honest about any potential harm you could cause another person. Not to give someone the choice and not to respect their rights to maintaining their health is to do damage to integrity. We talked about the fact that the harm of sexual assault was harm to our sexual and bodily integrity, and I think non-disclosure works in a similar way.
Throughout all this, I realize that I am over-simplifying. Gotell also talked about one’s ability to disclosure not always being possible. This throws a pretty heavy wrench in my thinking. I did a quick Google search to try and find some cases where a person claimed they were unable to disclose. I’m wondering how a case might be treated if a person who raped someone who was HIV positive contracted HIV, and how both the rapist and victim would be handled then. What about a person in an abusive relationship, what if they could find themselves in danger in disclosing?
Laws are always evolving, but I feel sort of hopeless that we’ll ever reach a point in our legal system where all criminal possibilities will be addressed and all will be addressed fairly and justice will always be served. I think the idea that the police are safe and here to help is becoming one of those flighty lies I have to tell myself to feel like I can even leave the house in the morning.
I also spent some time thinking about this. I went and researched some cases of a rapist contracting HIV after being convicted of rape. One, Richard Thomas in the United Kingdom, seems to be the most common search result that came up. Thomas was sentenced to five years for raping a woman in her sleep. A Reproductive Health Reality Check article is quoted: “Though the court proceedings were little more than a formality given his plea, the case is now making international news because the victim is HIV-positive, and Thomas is waiting to see if he contracted the virus during the assault.” Upon finding out of the potential, Thomas collapsed and was asked to be taken to hospital (Martha Kempner). It troubled me that this is the aspect that is making this international news. This also worked its way into exacerbating something else I have been thinking a lot about- pathologization versus criminalization. In choosing to pathologize rape to an extent instead of criminalizing it with a solely prison approach, we may be treating the social problem but how is the rape victim implicated in this? Further, if we decide it wasn't an act of criminal intentions but the perpetrator in fact needs help, is the victim disregarded and the act justifiable as per the reasons for the pathologization? Does the outcome of the rapist contracting HIV confuse this even more?
ReplyDeleteA Daily Mail article regarding Thomas concludes: “It is his own fault, if he had not committed this offence he would not have placed himself in this position.” And I finding myself completely agreeing with this.
Hey Natasha, great thoughts on this subject.
ReplyDeleteDuring Gotell's lecture, I was also pondering how we could best approach the changing landscape of HIV disclosure in our country. As Gotell mentioned, this law was originally put into place in the 1990s during the height of the AIDs epidemic, lending a gravity to the situation that does not exist in our time. Given the time the law was originally enacted, I can somewhat understand the extreme punitive measures taken -- contracting HIV/AIDs was a much more dire situation at that time. But as HIV is no longer a death sentence in our society (for those who can afford to address their illness), I would really love to see the law being altered to fit the times.
Just to make your confusion over the legal definition of what the crime should be, I have to admit that I've wondered whether the crime should actually be battery rather than assault. Battery, essentially, is the intentional touching of (or application of force to) the body of another person in a harmful manner without consent (findlaw.com). (Think of assault as the potential for harm to occur, while battery is harm actually occurring -- the threat of getting punched in the face [raising your fist to do so] is assault, while actually getting punched in the face is battery.) The reason I argue that transmission would be battery is, essentially, that in the case of undisclosed sex the HIV positive person intends to have sex with another person, makes physical contact, and potentially leaves lasting damages in the form of transmission. That said, the person involved is (presumably) not intending to actually spread the virus, but instead only threatening to do so (as one cannot guarantee the spread of the virus, only threaten the possibility) so I can still understand why the easier definition to pursue would be assault rather than battery.
The law is a labyrinth, honestly.
Truthfully, I don't think we could ever possibly address every criminal possibility. The law does the best that it can to address issues that come up, but wrenches are often thrown into the mix that makes and absolute mess of everything. And even if definitions are (theoretically) clear, they are often left up to the interpretation of whomever is judging the case in question and whatever biases that person may have. It is a very difficult thing to navigate, and these cases make that all too clear, unfortunately.