The other night I checked out AIDS Action Now’s launch event for their new campaign against HIV criminalization, Think Twice. The campaign is basically a web site with 40 one-minute videos in which some people quickly try to convince a viewer that if they have sex with someone who does not disclose that they have HIV, they should not press charges against that person. Unfortunately, the project comes across as another example of otherwise well-meaning progressive activists who refuse to engage with the issues that motivate people who disagree with them.
(There was a talk back at the launch, but I had to sneak out of the event early to make it to another event.)
I haven’t watched all of the videos – I don’t expect the casual viewer will, and there’s no narrative guide for how someone is supposed to choose one or an order of videos to watch. I’ve seen more than half of them and the messaging is largely similar. Many of the participants in the videos are activists of various sorts (legal, health care, political, HIV-specific, queer), or people who are living with HIV. Of the videos that I’ve seen, the overwhelming themes are:
- Going to the police won’t prevent you from getting HIV/cure your HIV, so it’s not worth it (you should probably go to a doctor instead).
- Going to the police won’t keep anyone safer, so don’t do it.
- You can’t trust the police/the police are not your friends/the legal and social consequences of going to the police will be worse for you than whatever you’re going through now.
- If you’re upset it’s probably because you chose to have unsafe sex, therefore your situation is your own fault.
- It is unreasonable to expect that an HIV-positive person would disclose their sero-status before sex because that puts them at (social) risk and kills the mood, and the right of HIV-positive people to have worry-free sex trumps your right to give informed consent (or, I guess, worry-free sex).
I am trying very hard right now to imagine a situation wherein any of these lines of thinking would be convincing to a person who has just found out that his partner has lied to him (by omission or otherwise) about his sero-status and wants to file a police complaint, and I’m sorry, I just can’t.
One of the reasons I was intrigued by this campaign is because for the past several years I’ve been working on a play that deals with exactly this issue. As I write it, I’ve tried very hard to understand both sides of the question. I’ve spoken to HIV-positive people and HIV-negative people about their perceptions of the disease and sexual ethics around it. I’ve been the guy who’s brought up the “what would you do?” question at parties (I’m really fun, honest). That, and I follow a lot of the court cases that end up in the media about this.
I’ve never once encountered someone who’s suggested that going to the police would retroactively stop them from getting HIV, or who thought going to the police precluded going to a doctor. Most gave me the impression they’d be freaking out and do both in quick succession.
Going to the police isn’t just about restitution, it also serves a few other roles for the complainant:
- vengeance/justice for a harm done by this person
- protecting others from the harm that the accused may do to them by removing him from society
- deterring still others from engaging in the harmful behaviour of the accused.
If you want to convince people not to pursue a police complaint regarding nondisclosure, I think you have to engage these desires, rather than the straw man argument that doing so will just make a complainant feel better.
To their credit, Michael Erickson and Chy Ryan Spain have contributed videos that get slightly more nuanced on the messaging, but largely because their videos stick to the extremes of honest HIV-positive people and malicious HIV-negative people who are using the courts to pursue personal vendettas. Those who would go to the police believe doing so will improve public safety by thwarting a Typhoid Mary’s ability to willfully and capriciously expose others to a disease (by sending him to jail), and by discouraging others who know they are HIV-positive from exposing others without disclosure. They are typically conscious about not wanting to quarantine all HIV-positive people, only the ones who are refusing to play an active part in protecting others.
There is a good argument that engaging the criminal justice system doesn’t keep people safer, and it is that if people know that HIV-positive people can be sent to jail for nondisclosure, then it’s both a massive disincentive to ever get tested for HIV (because once you know, you must disclose to partners or face jail, whereas if you don’t know, you can plead ignorance), and a perverse incentive for those who believe themselves to be negative to engage in risky behaviour because they can supposedly assume that anyone who’s positive would proactively disclose their status (I have never met anyone who actually thinks this, by the way).
But even this is unlikely to convince someone who’s thinking about going to the police. A complainant, after all, has a personal stake in the wider social drama being discussed, and he’s unlikely to think that in this particular case the accused’s nondisclosure kept him any safer.
The idea that we can’t or shouldn’t trust the police is one of the more worrying lines of discussion in this campaign. To be clear, yes, I am aware of the LGBTQ community’s long and difficult relationship with the police. But on the other hand, doesn’t this line of thinking run contrary to the last 25 years’ worth of outreach and bridge building? Haven’t we spent decades urging the community to report homophobic violence, period? To go to the police when involved in domestic violence? And hasn’t the sustained work generated some positive results? On what grounds do we believe that the police would treat a complainant poorly? That certainly doesn’t seem to be the case in the system today.
To this we add a somewhat shocking testimonial from my friend (and former boss) Marcus McCann, who points out that despite publication bans on your identity, the LGBT community is small enough that you will likely be “outed” as the complainant if you go to the police. The implication appears to be that the personal consequences of disclosure will include a backlash against your complaint, or your outing as someone who participates in unsafe sex, or outing any other details of your sex life during the course of a trial. And, the implication seems to go, you’ll have brought this further harm upon yourself.
But don’t forget that even the initial “harm” is your fault, too! After all you chose to wear that short skirt not to wear a condom. Well, this actually is tactic I can see working on someone who’s just found out he’s been exposed to HIV. After all, it’s worked on female rape victims for centuries. But I don’t think it’s very savoury, and I think this line of reasoning is likely to turn off most people who aren’t yet in the position of finding themselves on the wrong end of a nondisclosure encounter.
In fact, all of the arguments discussed above read like “Mirror, Mirror” versions of the messaging that’s been put out to standard, heterosexual sexual assault victims for the last several decades. “No point going to the police; that won’t un-rape you, so just move on,” or “Details of your personal life will come out if you complain about your rapist/abusive boyfriend,” or “Putting rapists behind bars will only encourage women to engage in risky behaviours like getting drunk at parties or jogging alone at night.” I hate to be glib, but the comparison to sexual assault is already there – it’s the charge for nondisclosure. For someone who believes himself to be a victim of sexual assault, these are unlikely to be comforting lines of reasoning.
Not only that, but isn’t it fucking bizarre to see AIDS activists essentially tell people that if they get HIV, it’s their own damn fault? How bizarre is it that the logical corollary of this line of reasoning is that only HIV-negative people are responsible for having safe sex, and HIV-positive people have no responsibility to have safe sex? That HIV-negative people must be concerned about the welfare of their HIV-positive sex partners, but that no such reciprocal obligation exists?
The campaign even includes a completely bananas video where within thirty seconds Sky Gilbert goes from saying the problem with criminalization is that people won’t get tested, to actually telling people not to go to the doctor and get tested, which is so incredibly irresponsible I can only hope this is meant to be some kind of ironic performance piece:
One of the arguments I find hardest to accept – and I know that many who find themselves on the other side of the criminalization debate feel similarly – is the idea that it’s unreasonable to demand that HIV-positive people disclose their sero-status to a sex partner. True, the LGBTQ movement has to a large extent been focused on the right to engage in consensual sex however we want to have sex. But, much of the moral argument around decriminalization of gay sex was structured around the fact that it didn’t actually harm anyone. HIV non-disclosure is not a clear parallel, because one partner is exposed to harm. Moreover, there is the issue of informed consent – when the partners have asymmetrical knowledge of their sero-statuses, or where one partner actively lies about his sero-status, the HIV-negative partner can hardly be accused of having given informed consent to the sex act. (These days, we don’t even accept ‘no means no’ for straight women; the standard is generally active consent at every stage of a sexual encounter.)
But in his video, Tim McCaskell says lying about one’s sero-status is akin to lying about how much money you make or whether or not you love your partner. “I know it can feel shitty when somebody you really like doesn’t tell you something that you think is important,” he says. “But if they didn’t tell you they were married, or had a boyfriend, or lied about their age, or didn’t really love you, you might be pissed off, but you wouldn’t go to the police.”
Um, no. But when someone lies to you about being married, it’s not likely to be detrimental to your health. How on earth are these situations comparable? In these situations, it isn’t just the betrayal that makes you feel “shitty,” it’s the actual harm, or risk of harm, to which you were not able to give your informed consent. (McCaskell’s defence of liars goes a little further than most people I know who’d defend a non-discloser, but that seems to be the main view of the group.)
I won’t even get into how this argument likely wouldn’t fly in the straight world, where spur-of-the-moment sex with strangers is much, much less common, and where both partners have always had to deal with the lifelong consequences of their sexual actions (because babies).
I’ve written before about how it seems like the progressive movement is losing because it’s refusing to listen to those on the other side, and I think this is an example of this outside the world of electoral politics. These are a bunch of arguments that people who already believe in the cause would subscribe to and pat each other on the back for repeating, but anyone even a little skeptical will ignore or tear apart in a few minutes. To be clear, I don’t at all doubt the sincerity of the people behind the videos, and I believe there are some very valid arguments against using the weight of the criminal justice system to regulate these sexual encounters in every situation.
What I think is a missed opportunity is that the project doesn’t actually give its audience an alternative solution to the problem. Only a few mention the importance of having safe sex every time if they want to stay safe, and testing regularly so that you know your sero-status and can get on treatment early. I haven’t come across a video that suggests having an open discussion with your partner about HIV before sex – possibly because the group is also defending lying about one’s sero-status, which defeats this as a protection strategy. Few are talking about actually reducing the stigma around HIV so that people would feel more comfortable disclosing in the first place.
I’m sure AIDS Action Now is planning to push this campaign further. I hope in phase two, they think twice about the message they’re sending and the audience who’ll hear it.