Languish Gheys and/or Lawtalkers to Me

[crazy canuck]

sigh.... the faggity polack lawtalker has lost it...

One must have something before it is lost...


As to the question you posed further up the thread regarding the point at which one becomes negligent by not obtaining a test - that is a very interesting question.

If one knows they engage in sexual or other risky behaviour that exposes them to risk of getting AIDs do they then have a duty to get tested - is it a form of wilful blindness not to get tested.

If the decision is made not to get tested would it be a defence if the person told their partner(s) that they have engaged in such risky behaviour but have not been tested?

To what extent does the partner have to make these enquires before engaging in sex?

The thing is, in 99% of cases, the "victim" to be infected is engaging in activities which carry similar level of risk as the "perpetrator" who infects that person (and the two are perfectly interchangeable), so penalizing the "perpetrator" for not exercising due care while the "victim" is not required to exercise the same due care, and the difference between them is simply about who got unlucky first, seems arbitrary.

Consider this syllogism:

1. If you believe that if person A tells person B, up front, before engaging in risky behavior, "I am infected", then it should exculpate person A, then...
2. If person A tells person B "I MAY be infected" in the same circumstances, this should also exculpate person A, then...
3. In circumstances that do not involve misrepresentation or breach of trust, person B should always assume that person A says "I may be infected" even if person A does not expressly say so.

You assuming gay sex.  My examples are broader than that.  For example if person B does not know that person A is an intravenous drug user and there is no other indication that person A is involved in any other risky behaviour then why should person B have a legal obligation to assume their would be partner might be infected.

Also, if a woman has no idea that her male partner is engaging in gay sex (or any other risky behaviour) then why should she have to assume a risk of infection?

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

[DGuller]

You have a higher chance of getting HIV as a passive partner in anal sex while wearing a condom than you have when engaging in oral sex without a condom, btw.

I think I know why.

There is a Pollack joke in there somewhere.

[Ideologue]

The duty of care of a vehicle driver is quite different though than a duty of... well, who exactly? Someone breathing and as a result infecting someone else with a disease that can be transmitted that way? So I don't think this is a very good comparison. Unless you are making a point that each person's duty of care should be to act as if he or she was suffering from all existing transmittable diseases and take all applicabe precautions.

And as I said before, if this law only applies to HIV, this is a completely ridiculous case of discrimination compared to other lethal disease carriers.

Btw, does the law make it a crime even if the victim was aware of the disease or only if this wasn't disclosed?

No, I'm suggesting that there is a reasonable standard of care one can expect from a living breathing human living in a human society. Having or participating in disease risk factors would suggest a moral responsibility to be informed of one's own infection status. If you have lots and lots of unprotected anal sex at bath houses with lots and lots of different men who have lots and lots of unprotected anal sex at bath houses with lots and lots of different men then I think it is reasonable that you are responsible for determining your own HIV status and acting accordingly.

Again, why are you singling out HIV? It is neither as deadly a disease as it used to be nor is it the only lethal disease out there, nor the most vicious of them. So this law seems to be motivated by anti-HIV (read: anti-gay) scare.

And besides, your example only shows your ignorance - cases like this are never as clear cut. For example, currently the fastest growing HIV infected group in the US are straight monogamous Black and Latino women who are faithful in their marriages.

With agressive drug therapy HIV is no longer lethal - it doesn't mean the disease itself isn't still lethal.  You'll still die without your retroviral drugs if you're HIV positive.

The issue is subtle enough that I'm probably missing something reading a machine-transleted article.

In Canada, people can and are convicted of aggravated sexual assault if they knowingly have unprotected sex without disclosing they are HIV positive.  I suppose there is some risk that might discourage people from finding out their HIS status, but given that it is a lethal disease without treatment I think there is a pretty large incentive to getting tested no matter what.

It would be difficult/impossible to change the law to go after people who unknowingly transmit HIV though - you'd never get beyond the mens rea component, and crim neg really doesn't fit.

I dunno.  Some serious crimes don't require a mens rea.  Why would this be different?  Theoretically speaking--I certainly agree from a policy standpoint, but is there a Canadian requirement that, say, felonies or your precious little hybrid offenses (bastards) include a mental element of intent rather than ours, which require, in some circumstances, none whatsoever?  (Famously, statutory rape--which when the perp is unaware of the age and has no reason to know it, is very similar to unwitting infection in the sense that the perp had no idea what he was doing was either wrong or was a crime.)

[Ideologue]

Viking, you haven't answered my question - what about prior disclosure.

The law punishes unknowing infection with up to 3 years and intentional infection with 6. I think the law considers having unprotected sex while HIV positive as intentional infection. I don't know what effect the state of knowledge of the person being infected has on this, but knowing norway; presumably agreeing to be infected or agreeing to risk being infected is a sign of mental illness or coercion (in which case it would be rape as well).

Are you saying that under Norwegian law a person who is HIV positive cannot legally have sex with another person without committing a crime? That's fucked up beyond anything that was said in this thread so far. 

I believe you're incorrect.  Infection appears to be an element, doesn't it?  I mean, it's in the name.

[garbon]

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

Then like Mart they'd be easily offended. I don't think it is offensive or odd to suggest that as a gay man one should start with the assumption that a potential sexual partner has HIV.

[Barrister]

I dunno.  Some serious crimes don't require a mens rea.  Why would this be different?  Theoretically speaking--I certainly agree from a policy standpoint, but is there a Canadian requirement that, say, felonies or your precious little hybrid offenses (bastards) include a mental element of intent rather than ours, which require, in some circumstances, none whatsoever?  (Famously, statutory rape--which when the perp is unaware of the age and has no reason to know it, is very similar to unwitting infection in the sense that the perp had no idea what he was doing was either wrong or was a crime.)

There are some regulatory offences which operate on strict liability - which means no mens rea.

But EVERY CRIME requires mens rea.  Stat rape has a mens rea - you need to show the accused knew, or more likely the accused should have known and was willfully blind, to the girl's age.

[Martinus]

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

Then like Mart they'd be easily offended. I don't think it is offensive or odd to suggest that as a gay man one should start with the assumption that a potential sexual partner has HIV.

I think it is a diligent assumption if one engages in straight sex with a random partner, too. I always love when straight people are surprised and shocked to find out they caught something from some girl or guy they just fucked (like one Languish poster for example).

[Martinus]

I dunno.  Some serious crimes don't require a mens rea.  Why would this be different?  Theoretically speaking--I certainly agree from a policy standpoint, but is there a Canadian requirement that, say, felonies or your precious little hybrid offenses (bastards) include a mental element of intent rather than ours, which require, in some circumstances, none whatsoever?  (Famously, statutory rape--which when the perp is unaware of the age and has no reason to know it, is very similar to unwitting infection in the sense that the perp had no idea what he was doing was either wrong or was a crime.)

But once you accept the fact that it should not be the crime once the "victim" is aware that his or her partner may be infected, then I don't really see why the infecting party "should have known" that he or she is infected, but the "victim" "should not have known" that her partner may be infected. If you are engaging in risky sex with strangers, I don't think you should be able to cry foul and have criminal charges brought against someone who infected you - because you were as likely to infect him or her in such situation, had you been infected by someone else earlier.

And while HIV is harder to pass between heterosexuals in situations where the woman has HIV and the guy does not, there is a host of other diseases like syphilis that are now having a renaissance of sorts  that can be deadly if untested/untreated (and I would like to see the statistics on how many of people posting in this thread got tested for syphilis at any time in their lives), among both gay and straight populations, so I don't think how assuming your newly met sex partner is infected with something is wrong or insulting.

[Martinus]

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

It's not about the chances, it's about the fact that it's enough to be "wrong" once in a thousand and it's still bad for you. You could just as well claim that it is offensive to require a good driver to wear a seat belt, because it's insulting to suggest he has a high chance of being in a car crash.

[sbr]

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

It's not about the chances, it's about the fact that it's enough to be "wrong" once in a thousand and it's still bad for you. You could just as well claim that it is offensive to require a good driver to wear a seat belt, because it's insulting to suggest he has a high chance of being in a car crash.

Holy crap.  Did you just make a relevant and coherent analogy?

[Martinus]

You assuming gay sex.  My examples are broader than that.  For example if person B does not know that person A is an intravenous drug user and there is no other indication that person A is involved in any other risky behaviour then why should person B have a legal obligation to assume their would be partner might be infected.

Also, if a woman has no idea that her male partner is engaging in gay sex (or any other risky behaviour) then why should she have to assume a risk of infection?

First of all, I love how "gay sex" is automatically risky behavior to you - I thought this was about using protection and not who you fuck.

Now, to the point. The duty of care when you are having a new sexual partner should be:
1. Have safer sex initially.
2. Once you decide to go "exclusive" and want to drop the protection, both of you should get tested.
3. Once you get the negative tests, you should start fucking without protection.

Now, indeed, if a situation like this, one of the partners continues to cheat on the other partner, without that partner's knowledge or consent, and infects the faithful partner, this should in principle be actionable - but then I have always said that, when I made a caveat for fraud/misrepresentation.

[Martinus]

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

It's not about the chances, it's about the fact that it's enough to be "wrong" once in a thousand and it's still bad for you. You could just as well claim that it is offensive to require a good driver to wear a seat belt, because it's insulting to suggest he has a high chance of being in a car crash.

Holy crap.  Did you just make a relevant and coherent analogy?

[Martinus]

Viking, you haven't answered my question - what about prior disclosure.

The law punishes unknowing infection with up to 3 years and intentional infection with 6. I think the law considers having unprotected sex while HIV positive as intentional infection. I don't know what effect the state of knowledge of the person being infected has on this, but knowing norway; presumably agreeing to be infected or agreeing to risk being infected is a sign of mental illness or coercion (in which case it would be rape as well).

Are you saying that under Norwegian law a person who is HIV positive cannot legally have sex with another person without committing a crime? That's fucked up beyond anything that was said in this thread so far. 

I believe you're incorrect.  Infection appears to be an element, doesn't it?  I mean, it's in the name.

Ok but then as I said before, whether you would be committing a crime or not in this particular instance would depend on luck, which in my opinion does not meet the standard for criminal liability - because no method is 100% safe; you could be fucked in the ass by 10 HIV infected dudes and not catch HIV; but you could get a blow job from a HIV infected girl, who inadvertently bites your dick and her cheek at the same time and get HIV. That's why I asked before if we set the standard of care at some arbitrary percentage of infection risk (apparently, getting HIV while getting a blow job has about 0.0001% of chance of infection - but it can happen).

[katmai]

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

It's not about the chances, it's about the fact that it's enough to be "wrong" once in a thousand and it's still bad for you. You could just as well claim that it is offensive to require a good driver to wear a seat belt, because it's insulting to suggest he has a high chance of being in a car crash.

Holy crap.  Did you just make a relevant and coherent analogy?

Who hacked his account?

[Ideologue]

I dunno.  Some serious crimes don't require a mens rea.  Why would this be different?  Theoretically speaking--I certainly agree from a policy standpoint, but is there a Canadian requirement that, say, felonies or your precious little hybrid offenses (bastards) include a mental element of intent rather than ours, which require, in some circumstances, none whatsoever?  (Famously, statutory rape--which when the perp is unaware of the age and has no reason to know it, is very similar to unwitting infection in the sense that the perp had no idea what he was doing was either wrong or was a crime.)

There are some regulatory offences which operate on strict liability - which means no mens rea.

But EVERY CRIME requires mens rea.  Stat rape has a mens rea - you need to show the accused knew, or more likely the accused should have known and was willfully blind, to the girl's age.

No, you don't.

And don't go look up the federal statute, because, yeah, it does have a mens rea component.  However, many state ones don't.

That's why I asked if "in Canada," which is not all the common law world.