Foundation wants ethical-legal balance on disclosure of HIV

THE NEW Zealand Aids Foundation’s position is that there is nothing to be gained and much to be lost by forcing people living with HIV to disclose their status to sexual partners, provided they are using condoms and lubricant.

This reflects the legal position for New Zealand made in the courts in 2005.

There is, of course, an additional duty of appropriate ethical behaviour by an individual. Ethically, the Aids Foundation encourages people to disclose their HIV status to their partners as soon as they feel able and supports many clients to do just that.

Yesterday’s editorial, Nothing but truth for HIV sex partners, has focused on the ethical duty without considering the legal duty. To effectively control the HIV epidemic a balance needs to be struck between the two.

The foundation’s position on the law is not an arbitrary one; the legal position was established by the courts.

A judge, selected for their ability to exercise wise and objective judgment when presented with the facts of a case and taking expert witness into account, made this decision.

Among those facts are the realities of HIV transmission: HIV can only be transmitted when infected blood, semen, vaginal fluid, rectal mucosa, or breast milk enters an individual’s bloodstream.

The greatest risk is blood to blood contact (via shared injecting needles, for example) followed by anal or vaginal sex without a condom and lubricant.

Other sexual activities such as oral sex carry virtually zero risk if a person’s mouth is healthy. Activities such as kissing, sharing eating utensils or shaking hands that would place a person at risk of another virus like a cold or chicken pox, carry no risk of HIV at all.

Condoms are essential in the HIV prevention arsenal because they prevent the entry of bodily fluids into a person’s bloodstream.

New Zealand has one of the best records in the world for controlling HIV and a key plank to achieving this has been the promotion of condoms. Condoms can be faulty and they can break.

However, the chance of a person contracting HIV through a single act of protected vaginal sex, arising from the slight possibility of a broken condom, is the same as the annual likelihood of death from falling – about one in 20,000.

There is no need to change New Zealand’s criminal law about HIV transmission because existing law has been successfully used to prosecute those who have deliberately withheld their HIV status and not used condoms.

The very real risk of changing the legal precedent is that it will make people who think they may have contracted HIV afraid to come forward to test for fear they will face serious prosecution and stigma.

This is not good for anyone. It pushes HIV underground and makes the epidemic much harder to control.

New Zealand has achieved its excellent results in controlling HIV because it has created a safe legal environment and openness to discuss HIV with minimal recrimination or stigmatisation.

This is not theory but is based on experience. Countries that have harsh legal regimes that penalise people living with HIV, such as Uganda for example, have devastating epidemics.

The very real risk of changing the legal precedent is that it will make people who think they may have contracted HIV afraid to come forward to test for fear that they will face serious prosecution and stigma.

Countries like New Zealand that align the law with good public health and human rights have the best records at minimising the number of HIV cases.

It is not by chance that HIV diagnoses fell in New Zealand by more than a third in 2011. All New Zealanders surely want this excellent record to continue.

For 25 years, foundation centres have provided free counselling services by qualified and accredited professionals so people living with HIV can disclose their HIV status to their partners in healthy, respectful and safe ways.

Being diagnosed with HIV is a deeply personal and individual experience that is traumatic and distressing for many people and the partners of the majority of people living with HIV are their primary source of support. The foundation encourages and supports people living with HIV to tell their partner for this reason, but we remain unequivocal in our promotion of condoms and lubricant to prevent the onward transmission of HIV both before and after this happens. Shaun Robinson is the NZAF executive director