Should it be OK for people who have HIV to have protected sex?

This issue may be discussed in a court trial of a 28-year-old man who is charged with attempted murder and aggravated sexual assault over having unprotected sex with another man without disclosing his HIV-positive status. Sahand Mahmoodi made use of online gay chat rooms where he met the victim on an Internet dating service. He was arrested on May 6, 2009 and he has known about his HIV status since 2000.

The charge is just one in a growing trend across the country to deal with the nondisclosure of HIV. Since the mid-1990s, about 80 people have been charged across Canada with offences relating to nondisclosure of HIV-positive status. One of the more well-known cases involved a 52-year-old Hamilton man, Johnson Aziga, who was charged in the deaths of two women after infecting them. He was found guilty of first-degree murder earlier this year.

As to the charge of attempted murder, the charge is justified. The crime of murder requires proof of a particular state of mind or intention. For an unlawful killing to be murder, the Crown must prove that the defendant meant to cause bodily harm that he knew was likely to kill and was reckless whether the victim died or not. This is why Sahand Mahmoodi was justifiably charged with attempted murder. If his victim dies, he will then be charged with first-degree murder.

The Supreme Court of Canada has established that a person with HIV must disclose his or her status before engaging in sexual activity where there is a significant risk of transmitting the disease to the sexual partner.

There have been charges laid where condoms were used or oral sex was involved even though both have a low risk of HIV transmission.

Is there a connection between HIV and oral sex? There is a commonly held belief among many lay people that oral sex carries little or no risk. In fact, some people consider oral sex as a safer sex alternative. But the truth is, like any other sexual activity, oral sex carries a risk of transmitting HIV and other sexually transmitted diseases. The risk is even greater in serodiscordant couples (one partner is HIV positive while the other is negative), when people who are not monogamous, or in people who inject drugs and/or share needles and syringes. Truth be told, abstaining from oral, anal, and vaginal sex all together is the only way to completely avoid the sexual transmission of HIV. But how realistic is that?

The HIV virus has been transmitted to receptive partners through fellatio, even in cases when insertive partners didn't ejaculate. With fellatio, there is a theoretical risk of transmission for the receptive partner because infected pre-ejaculate fluid or semen can get into the mouth. For the insertive partner there is a theoretical risk of infection because infected blood from a partner's bleeding gums or an open sore could come in contact with a scratch, cut, or sore on the penis.

While there is documented risk when having oral sex with an HIV infected partner the risk is much less than with anal or vaginal intercourse. This fact makes it very hard to calculate the actual risk with oral sex. Another factor that makes risk determination difficult is the fact that most people who engage in oral sex also engage in other types of sexual practices, namely vaginal and anal intercourse. Still, there have been document cases of HIV transmission strictly from oral sex.

For example, this can occur if the partner’s mouth has a cut in it. If so, the virus will then enter the blood stream. If on the other hand, the semen does into the mouth of the receptive partner and doesn’t enter his or her bloodstream at that point and enters the partner’s stomach, then there is no risk of the semen entering the bloodstream via the stomach. The reason is because the stomach excretes hydrochloric acid in the stomach cavity and that acid is the strongest acid in the world and as such, it destroys the virus on contact. The reason why the acid doesn’t destroy the stomach is because when it hits the surface cells of the stomach, the acid destroys them but immediately after that, new cells take their place.

When used correctly, a condom is about 98 per cent effective. This means only about 2 in every 100 sexual partners would get the HIV virus from a carrier in the course of a year. Even 1 in a thousand puts every non HIV carrier at risk.

It would appear that unless a perfect (almost bullet-proof) condom is created, the risk of contamination of the other sex partner’s blood is still possible. This means that since the risk is still there, there is a moral and legal obligation for anyone carrying the HIV-positive virus to inform his or her sexual partner of this fact.

Being reckless in having sex with a sex partner when you are HIV-positive and the partner dies as a direct result of being infected by your semen can get you a life sentence in Canada because criminal negligence is also punishable by life in prison in Canada. Despite that possibility, the police prefer to lay the charge of attempted murder if the other person lives and first-degree murder if the other person dies.

There can be no doubt whatsoever that HIV-positive people suffer from not being able to have sex as often as they wish since once their partners have been told of the status of the HIV-positive person’s illness, the opportunities would in all likelihood disappear like fog on a sunny day. However, if the partner has been informed of the status of the HIV-positive partner and despite that knowledge, agrees to have sex, be it protected or unprotected, and gets ill or dies as a direct result, the HIV-positive partner has committed no crime. But he had better get something signed by his partner that his partner has been forewarned and has agreed nevertheless to have sex with the other partner.