This article is in response to Laura Chown’s article, “Supreme Court HIV ruling promotes stigma.”
The Supreme Court ruled the following in R. v. Mabior: that an individual would not have to disclose HIV status, provided the following two conditions are met: (1) a low viral load of HIV, and (2) use of a condom.
Chown argues that the Supreme Court was wrong in applying the two-part test. For her, if either one of the two parts of the test are met, there should be no requirement for disclosure. Consistent with the views of the HIV/AIDS Legal Network, she states that the ruling promotes “stigma” and places an extra burden on those living with HIV.
The topic of consent is strongly promoted on campus. To be able to enter a contractual decision with another person, one needs to have all the facts to make a rational decision weighing costs and benefits. Chown further states that, “Condom use, regardless of viral load, is close to 100 per cent effective in preventing the transmission of HIV when used properly.” This is incorrect. The number is closer to 80 per cent.
Quoting the judgment:
 It is undisputed that HIV does not pass through good quality male or female latex condoms. However, condom use is not fail-safe, due to the possibility of condom failure and human error. Dr. Smith testified that consistent condom protection reduces the risk of HIV transmission by 80 per cent, relying on the widely accepted Cochrane review: S. C. Weller and K. Davis-Beaty, “Condom effectiveness in reducing heterosexual HIV transmission” (2002), 1 Cochrane Database Sys. Rev. CD003255.
Chown is correct in identifying that both a low viral load and condom use significantly reduce rates of transmission. However, satisfying only one of the conditions means that a risk still exists. And for this reason, disclosure must still be required. Antiretroviral treatment reduces the chance of transmission immensely, by about 89 to 96 per cent (para. 101), but it is still not fail-safe.
The Supreme Court did not pull this decision out of thin air, but considered expert testimony on this delicate issue. The importance of consent is hammered home for students day in and day out. The recent ruling has many implications for it, and the Supreme Court ruled correctly. For consent to truly occur, if a risk exists, however small, a person must know what he/she is getting into. The ruling protects society by requiring disclosure when risk exists; when a risk does not exist, disclosure is not required. It is a fair ruling.
The statement by the HIV/AIDS Legal Network, which Chown draws her evidence from, is entitled, “UNJUST SUPREME COURT RULING ON CRIMINALIZATION OF HIV MAJOR STEP BACKWARDS FOR PUBLIC HEALTH AND HUMAN RIGHTS.” It argues that “people not living with HIV need to be empowered to accept responsibility for their own health, and not proceed under a false sense of security that the criminal law will protect them from infection.” Chown likewise states that, “a legal obligation to disclose irrelevant information has instead promoted a false sense of security among HIV-negative individuals.”
This sort of outlook is very dangerous. HIV status is certainly not irrelevant. If someone does not know that his/her partner has HIV because of a lack of disclosure, and he/she is at risk of contracting it, that is what creates a false sense of security. Blaming victims who cannot make an informed decision is not the right way of addressing this issue. The Supreme Court made the responsible decision, and those who believe in informed consent must agree.