HIV Status and Rape

I heard the following story from an activist who defends the rights of HIV-positive people. A man slept with a woman. The morning after, she revealed to him she was HIV positive. He says he was shocked and terrified. Still, they stayed together for 4 years. Then, he beat her and pushed her small child. She turned him in to the authorities.

At the trial, the guy stated he had been raped the first time they had sex because it was sex under false pretenses. He also said he stayed with her this entire time because he had been traumatized by the revelation she was HIV-positive and had put him at risk.

So now the guy is free and the woman is in jail for rape. She is filing an appeal and the HIV foundation is supporting her because they don’t want a precedent to be set where anybody can inflict harm on an HIV-positive person under the pretext that they were traumatized by the initial non-disclosure of the person’s HIV status.

This is obviously a complex and painful issue. What do you, dear readers, think about it?

80 thoughts on “HIV Status and Rape”

  1. I believe that people who are aware of their status as HIV+ (or having any other STI) should disclose to a potential sexual partner before intercourse. Maybe I’m wrong about this, but it could almost be called a form of rape by deception, since other cases of rape by deception were cases of lying by omission to obtain someone’s consent in sex- which is what happened here.
    However, he should go to jail for pushing the small child and beating her. There is literally no excuse under the sun (save for self-defence/believing your life or someone else’s is in danger) for someone to assault another person, and literally no excuse for a small child to be hurt by an adult.

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    1. The problem I have with this law, even why I agree in principle that transmitting by deception HIV should be criminal, is : how are you going to prove it? I mean, this law would put every HIV+ person on mercy of his/her former lovers. Unless it would be with tape recording or a trip to a lawyer, it wouldn’t be provable.

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        1. I thought about rape too, while typing it.

          In this specific case there is also a question: did he use a condom this 1st traumatic time? Is he ill now? If yes, did he become infected from the 1st time or later? I don’t buy his excuse, and abusers are known for showing “good face” outward and convincing even the courts the abused party is insane, horrible, and so on.

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          1. I think we will all agree that there is no excuse for beating a person and anybody who does that should be in jail. However, from what I understood, he has been set free because of the alleged psychological trauma he said drove him to hit her and push the child.

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            1. If he had such a fear of disease (as I would too), he would have run away fast, instead of risking it again & again. I would vote against releasing him in a jury and wouldn’t believe 1 word. It’s all too convenient for him to be true.

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          2. *Very* good point about abusers and … so they used a condom and he is HIV negative … and he had sex with her for 4 years after finding out … yes, it is entirely bogus and the judge has fallen into this trap. !!!

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    2. “Maybe I’m wrong about this, but it could almost be called a form of rape by deception, since other cases of rape by deception were cases of lying by omission to obtain someone’s consent in sex- which is what happened here.”

      I agree but this is not a rape in this case. The man gave her his consent.

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          1. He said he was so traumatized, he couldn’t keep his thoughts straight. This is once again the story of “I’ve been coerced into doing this.”

            Obviously, I don’t support this kind of excuse on the guy’s part. I believe the woman was wrong in not telling him. However, this doesn’t excuse the assault 4 years later.

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  2. If you know you’re HIV positive and have unprotected sex with someone without telling them, then I think that could maybe be considered to be rape – although I think (off the top of my head) that such a situation is often taken to be attempted GBH instead (or GBH if they become HIV positive as a result). If you don’t tell them, but you take all necessary precautions, then I think there’s really a problem with saying it was rape under false pretences. Because, for one thing, where does it end? How much do you have to disclose about yourself to the person you’re having consensual sex with before you’re safe from prosecution?

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    1. I think that having an STD is something that one is absolutely obligated to disclose. No means of protection is failproof. Condoms have too high a failure rate for me to be comfortable.

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  3. Imho, a man/woman, who don’t use condoms with casual partners, have to understand the risk of disease. What if somebody doesn’t know s/he is HIV+? What if they even got checked, but it was at too early stage to detect it? That’s why a gay man blogger at ECHIDNE OF THE SNAKES wrote a passionate post against casual sex for gay men especially, but also for others. I don’t want to sound as “purity” supporters, I am not one, but people should understand risks. If he did it without a condom, it’s horribly irresponsible.

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  4. She certainly should have revealed, especially since it was HIV (but all STDs should be revealed).

    He, however, is an adult and could (or should) have left. Being traumatized into staying because of this is still his responsibility, he should have gone to therapy.

    In jail for rape, I am not convinced this is right. Fraud, perhaps, or reckless endangerment. I say this as someone who has been in the position of not being told, and having been very irritated about it.

    HIV foundation supporting her, I see the point. Not because she was not obliged to tell or because it was OK not to tell, but for the reasons given already — he was not obliged to stay with her, and beating her is also a crime, and it would be a dangerous precedent, yes.

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      1. Yeah, but I see nothing in this judgement that contradicts your version.

        I think this woman is a victim of the fami-favoritist style of justice in Québec. This seems to be crazy!

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  5. I read a part of this judgment and it seems that the beating accusation may be bogus. Maybe they punished her just because of that, and this seems to be ridiculous.

    But I don’t see anywhere the fact the man consent this relation during 4 YEARS!

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  6. My position is clear now: this judgment is ridiculous and unacceptable, even in the hypothesis that
    the beating accusation would be bogus. I think I’ll publish a post in my blog about it.

    Look at this stupid reasoning of this raving lunating judge:

    ” [90] Même s’il a consenti, après le dévoilement, à d’autres relations sexuelles, il l’a fait après avoir été clairement renseigné sur les conséquences et les risques de telles relations. (Yeah, I didn’t know that your honor! I’m sooooo stupid!)

    [91] Bien que certains pourraient voir dans ce comportement une forme de pardon et conclure qu’il serait dès lors inapproprié de sanctionner la conduite de l’accusée par une condamnation criminelle, le Tribunal ne peut se rendre à cet argument, car il banaliserait un comportement inacceptable, et ce, pour deux raisons :

    91.1. d’abord, il ne faut pas oublier que lorsque le plaignant accepte d’avoir des relations sexuelles avec l’accusée, après le dévoilement par celle-ci de son état de santé, il le fait en toute connaissance de cause : non seulement est-il au courant de son état de santé, mais il est également au courant des risques qu’il encourt; (He repeats two times that stupid truism!)

    91.2. ensuite, il laisserait à la personne infectée le choix de le dire et également le moment de le dire. (WHAT??????? HE HAS NO PROBLEME WITH THAT DURING 4 FUCKING YEARS!) La Cour suprême dans l’arrêt R. c. Cuerrier, précité, stipule que :

    144 …Il est certain que les personnes qui savent qu’elles sont séropositives ont la responsabilité fondamentale d’aviser leur partenaire de leur séropositivité et de s’assurer que leurs rapports sexuels présentent le moins de risques possible.

    [92] Ce passage démontre clairement, de l’avis du Tribunal, que les personnes séropositives ont deux responsabilités fondamentales :

    92.1. d’abord, aviser leur partenaire de leur séropositivité; et,

    92.2. ensuite, de s’assurer que leurs rapports sexuels présentent le moins de risques possible.”

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    1. The judge isn’t thinking coherently. It really seems to me that most would really question the 4 years of post revelation consent. Oder nicht?

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  7. Very interesting…. this judge, Marc Bisson, is the son of Guy Bisson, a Parti Liberal du Québec organizer who helped to elect Jean Charest as a Prime Sinister.

    Jean Charest is the actual Prime Sinister of Quebec. Marc Bisson was appointed as a judge because he’s the son of a Prime Minister party’s organizer.

    http://www.radio-canada.ca/nouvelles/Politique/2010/04/14/004-juge-bisson.shtml

    Send this to the HIV activist group, that’s important.

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  8. Considering I’ve seen similar circumstances like this before (a woman killing her husband in cold blood then saying he was abusing her and got off with an extremely light sentence) I say they both need to be punished. If this is happening in The States then her HIV status should not be used as a get out of jail free card since there are cases in which people have been convicted on Attempted Murder charges for knowingly infecting a sex partner with HIV/AIDS. And obviously if he abused her then he needs to be punished as well.

    I’d be a bit worried if the angle they are appealing under is “this is only happening because she’s HIV positive and that’s discrimination”.

    Because on the other side of this coin:
    She is filing an appeal and the HIV foundation is supporting her because they don’t want a precedent to be set where anybody can inflict harm on an HIV-positive person under the pretext that they were traumatized by the initial non-disclosure of the person’s HIV status.
    would be setting a precedent that being abused somehow excuses knowingly infected someone with HIV/AIDS. I could see this turning into, “so what if she infected him with HIV/AIDS? he abused her so why should she be charged with anything?”

    To me it sounds like they are both scum and I feel sorry for the kid.

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    1. I disagree with Attempted Murder charge since they used a condom, she didn’t “knowingly infect” him. He also didn’t know it only for the first night, later during next 4 years everything was 100% legal and morally sound in my mind. He knew the risk and took it.

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      1. The problem, el, is that people don’t read. On the one hand there’s David who’s looking into every single detail and even digging them out, and on the others there’s “This was attempted murder”. It’s a cross-section of The People.

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        1. You can say that again. Look at the Rape and Child Support Thread. People ask the same boring question 20 times in a row because they are too lazy to read the answers already provided.

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  9. Let’s begin with one question: did the woman fail to disclose her status to the man because of women’s disempowerment in sexual relationships? Who raped whom?

    And did the man ever ask her whether she had HIV? If not, why not, and if she answered No, why did he rely on her word? Some women are infected and do not know it. Others know but keep that knowledge to themselves because – as women – they are disempowered. So what possessed the man to have sex without a condom, no matter what either of them may have told the other? He’s an adult. He knew his risk and he assumed it. He has no complaint against the woman.

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  10. “Then, he beat her and pushed her small child. She turned him in to the authorities.”

    I have to make the hypothesis that this beating accusation is a fake. But, this change nothing for her case. And I wonder why a men accept to have sex with an unknown parter without condom. That’s utterly nonsense!

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  11. “So now the guy is free and the woman is in jail for rape”

    I think the woman is free right now. How many years in prison was her sentence?

    And what’s the name of the HIV foundation?

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  12. “Didn’t you say they had unprotected sex before she disclosed?2

    This is also HIS responsibilty.

    “That us obviously a crime, irrespective of what anybody consented to afterwards.”

    No, he consents a posteriori to this rape, so there was no rape. If someone beats you one time, and after that, you love him and you marry him and live peacefully during 4 years with him, would you call the police after these 4 years, if he cheats you with another women?

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      1. I don’t think she should be prosecuted for rape. I think she should be prosecuted for reckless endangerment:

        Reckless endangerment: A person commits the crime of reckless endangerment if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. “Reckless” conduct is conduct that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. The accused need not intentionally cause a resulting harm or know that his conduct is substantially certain to cause that result. The ultimate question is whether, under all the circumstances, the accused’s conduct was of that heedless nature that made it actually or imminently dangerous to the rights or safety of others.

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        1. Yeah, but this not exists in Canada, so they accused her for rape and assault (voies de faits graves).

          But again, courts should not be used to overturn of forgiveness by a victim, that’s unsustainable.

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          1. ??? Why should the court care about the forgiveness of a victim? A criminal is dangerous because s/he can inflict the same harm on others. What do I care if somebody who did harm to me was forgiven by previous victims?

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              1. Think of what would happen if the victim’s forgiveness becomes a decisive factor. Then, a rich person would never be prosecuted for anything if they pay the victim enough to say they have been forgiven. How is that fair?

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      1. So States will be in bankruptcy if this tendency continues, prisons will be even more overcrowded than in US right now. That’s unsustainable.

        Courts should be used to change your mind about forgiveness because someone don’t want to have sex with you anymore after 4 years. There’s no rape in this case.

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        1. I agree there was no rape, so we don’t need to argue about that any more. 🙂

          What I don’t agree about is that anybody’s forgiveness has to be of any interest to anybody during court proceedings.

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            1. No. Prisons are overcrowded because of policies like three strikes you’re out, and long sentences for nonviolent crimes, and drug crimes.

              On assault, rape, and so on, a lot of people actually don’t press charges, or drop charges, so there *is* in fact a large forgiveness factor already.

              Interesting to read you though — I guess I have the statist perspective and am so used to it I find it natural!

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              1. “Prisons are overcrowded because of policies like three strikes you’re out, and long sentences for nonviolent crimes, and drug crimes.”

                I agree but they will be even more overcrowded with that.

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              2. “Prisons are overcrowded because of policies like three strikes you’re out, and long sentences for nonviolent crimes, and drug crimes.”

                I agree but they will be even more overcrowded with that.

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              3. No, because it’s already that way. You forgiving the perpetrator doesn’t change their sentence. A lot of forgiveness is solicited before charges are pressed, and when they have been filed (so as to drop the thing and not go to trial).

                From what I understand you want these things to be resolved without state intervention, so, if I decide to forgive someone they are off the hook. The problem is, others may have a problem with your perp’s behavior as well.

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  13. Oops, I miss something. The beating accusation for the child is not a fake finally.

    “21.5. cette plainte a été portée à la suite de la rupture du couple, rupture survenue dans une situation difficile, à la suite de l’hospitalisation de l’accusée et à la suite d’événements de violence qui ont conduit le plaignant devant le Tribunal à titre d’accusé, événements pour lesquels il a été déclaré coupable de voies de fait contre le fils de l’accusée”.

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