OPINION PIECE RE HIV DISCLOSURE

Steve Attwood,
Communications Co-ordinator, New Zealand AIDS Foundation

It seems to be reasonable to react with alarm that a District Court judge has ruled that an HIV positive person who uses a condom need not disclose their HIV status to a sexual partner. No-one likes being lied to and it would appear common sense to say we have a “moral” right to know if we are at risk, even if that risk is small.

However the fear of HIV has driven the moral debate to ignore the biological facts. There is no clamour, for instance, for people infected with the genital warts virus to disclose their status, in spite of the fact that there is a very strong biological link to the wart virus causing cervical cancer which kills 60-80 women a year, compared with four people who died of AIDS in 2004.

Judge Susan Thomas heard medical evidence that the chances of a woman contracting HIV from an HIV-positive man using a condom during vaginal intercourse were only about one in 20,000. In our daily lives we accept a level of reasonable physical risk-taking, but we realise it is impractical to remove risk entirely. By driving we consent to the risk that someone may accidentally kill us, but we don't stop driving.

The Foundation is not advocating that HIV-positive people can behave how they want. We have consistently spoken out against unsafe sex and worked hard to make society safer for HIV positive people so that they can disclose.

Whilst we appreciate the high standards of honesty demanded by the outcry we know that the reality is that such honesty is rare in many sexual liaisons. Many break their marriage vows for adultery. Many of us already know that relying on our partner's honesty does not guarantee physical or emotional wellbeing.

The experience of HIV/AIDS organisations worldwide is that compulsory HIV disclosure does not improve public safety; indeed, it is highly likely to increase the rate of new HIV infections.

A legal requirement to disclose would shift the public focus from avoidance of HIV through safe sex practices, to avoidance of HIV through identification and avoidance of HIV positive people.

This is an ineffectual response to HIV, which is a virus many people do not know they have, which has no visible signs of infection, and is undetectable by most HIV tests if acquired very recently - precisely the stage at which it is most infectious to others.

Further, because of the frightening social and legal permutations of forced HIV disclosure, many at-risk people will simply decline to test. The vast majority of persons who know they are HIV-positive adopt measures to ensure others are not infected. Those who do not know their status often do not have such a strong commitment to safety. By creating a disincentive to test, a legal requirement to disclose will increase the number of people in the community who are unaware they have HIV, and will increase the level of unsafe sex.

Judge Thomas has actually achieved a win-win situation. She has underlined the legal requirement of condom use by HIV-positive people for penetrative intercourse, and she has reinforced the focus on physical prevention rather than disclosure of HIV.

Another unwanted side effect of compulsory disclosure would have been to place all the responsibility for safe sex on those who had tested HIV-positive, removing responsibility from people who had not tested, even though they might have engaged in multiple unsafe episodes. The best message from this decision is that both partners in a sexual encounter, particularly within casual sex where full disclosure of sexual history on either side is highly unlikely, should be aware of the potential risks and act accordingly.

The NZAF has always been emphatic that what stops HIV transmission is not disclosure (after all disclosure and then consent to no condom would be utterly legal but not stop HIV at all) but a condom for vaginal or anal intercourse, no exceptions; a strategy akin to putting on a seat belt every time one gets into a car.

New Zealand achieved international acclaim as the first country in the world to achieve a dramatic down turn in AIDS diagnoses among homosexually-active men in the earlier years of the HIV epidemic, before modern medications became available to slow the progress of the virus. This success was due to the widespread adoption of a condom culture in what was, and still is, our most at-risk community.

That HIV among homosexually-active men is now rising to record levels is not a sign of condom failure, but, sadly, a sign that people are increasingly relying on methods other than condoms to keep themselves “safe”. A legal and cultural focus on disclosure rather than condoms would, undoubtedly, accelerate this disturbing new trend.