Why should those with HIV disclose this fact with their sexual partners?                                                  

The tension between the need to maintain control over personal information and the moral and ethical obligation to warn others of the potential for HIV-related risk is at the core of the debates about the use of criminal law to encourage disclosure or punish non-disclosure of one’s HIV-positive status. 

Many HIV-positive individuals are willing to share information about their HIV status with their partners. The circumstances and timing often vary. However while some people are willing to tell their sexual partners immediately, others may hold back because of concerns about potential negative consequences. Some HIV-positive people may be reluctant to disclose while trust is still developing in relatively new relationships.

An HIV-positive person may be misperceived as HIV-negative by a sexual partner simply because the partner wrongly interpreted the HIV-positive person’s silence on the matter. It is also conceivable that an HIV-positive person may intentionally lead a sexual partner to believe that he or she is HIV-negative. Sometimes this is accompanied by an intention to ‘correct the record’ at a later date when trust and emotional connection have developed. For many people, HIV disclosure is not an event or a one-time conversation. It is a process that takes time and constant communication.

In addition, some HIV-positive people try to disclose their status to sexual partners in ways that do not include direct and open discussion of HIV. Although this oblique or implicit disclosure may lead to miscommunication, this may not be evident to either partner at the time of HIV-related risk-taking.

In a 2003 book examining disclosure amongst a wide range of HIV-positive people in the United States, the authors, Klitzman and Bayer included the example of an HIV-positive man who told his HIV-negative female partner that he expected to have a shorter lifespan, without explaining why. In retrospect. the female partner said she understood he was referring to the fact that he had HIV, but there could be lots of reasons why someone would make a statement like that. Unfortunately, undecipherable coded communication is no communication at all.

The application of the criminal law to potential or actual HIV exposure or transmission calls attention to the potential difficulties that people with HIV may face when considering disclosure of their HIV-positive status.  In particular, people living with HIV may choose not to disclose for fear of rejection, stigma, discrimination, or violence,  loss of privacy and confidentiality.

For women in particular, especially in countries where human rights are non-existent, confidentiality of medical information, including HIV status, is essential to the protection of their human rights, because these women may find themselves abandoned, subject to domestic violence, or ostracised if their domestic partners, families or communities discover that they are HIV-positive.

Research from Africa indicates that the fear of disclosure of HIV status is one of the main barriers to women’s use of voluntary counselling and testing services and this fear reflects  the unequal and limited power as many women have to control their risk for infection.  Further, in some cases, particularly for women the fear of violence may be a reason for not disclosing their HIV status.

Some prosecutors in criminal cases may portray a non-disclosure on the part of the HIV person as a conscious effort to deceive which may instead be simply a form of behaviour that has resulted from denial, lack of self-efficacy to disclose, or concerns over potential repercussions of disclosure.

The law may not distinguish between acts engaged in through love or simple lust, but the reasons for disclosing and not disclosing, or waiting to disclose, HIV-positive status would seem to change almost completely based on the forms of intimacy and the relational systems that structure them with casual and long-term partners.  

Participants at the UNAIDS technical consultations noted that although all people have an ethical obligation not to cause harm, a blanket rule of mandatory disclosure of HIV infection would fall most heavily upon those whose circumstances make disclosure difficult or impossible which would likely have an effect on women disproportionately.  Consequently, there was an agreement that where there are reasonable fears of violence or abuse related to HIV disclosure or use of HIV prevention methods, the law must not expose people to criminal liability under these conditions. Participants emphasized that those responsible for developing policy and law must take barriers to disclosure and to taking precautions into account and develop strategies for overcoming them.

Since HIV is a highly stigmatized condition, WHO and UNAIDS support a human rights approach by encouraging beneficial disclosure of HIV status. Since HIV is a highly stigmatized condition, WHO and UNAIDS support a human rights approach by encouraging “beneficial disclosure” of HIV status. This approach emphasizes that individuals should have control over if, how and when to tell others about their HIV-positive status. Beneficial disclosure, they explain, “is disclosure that is voluntary; respects the autonomy and dignity of the affected individuals; maintains confidentiality as appropriate; leads to beneficial results for the individual, his/her sexual and drug-injecting partners, and family; leads to greater openness in the community about HIV/AIDS; and meets ethical imperatives so as to maximize the good for both the uninfected and the infected that individuals should have control over if, how and when to tell others about their HIV-positive status.

Beneficial disclosure, they explain, “is disclosure that is voluntary; respects the autonomy and dignity of the affected individuals; maintains confidentiality as appropriate; leads to beneficial results for the individual, his/her sexual and drug-injecting partners, and family; leads to greater openness in the community about HIV/AIDS; and meets ethical imperatives so as to maximize good for both the uninfected and the infected.

Quite frankly, I have a problem with this reasoning. Although I am sympathetic to those unfortunate people who suffer from AIDS, I am not convinced that they should keep that information from their sexual partners.

Imagine if you will, a woman is going with a man she loves and both have expressed the desire to have children. They then get married. He is HIV positive and doesn’t tell his wife of that fact and he impregnates his wife.  Not only is she pregnant, she has now become a victim of AIDS and her unborn child.   

Although HIV can pass from an HIV-infected mother to her child during pregnancy, at the time of birth, or when breast-feeding her infant, medical treatment of both the mother and her infant can minimize the chances of that happening.

HIV-infected women ideally should start “anti-retroviral therapy” (ART) before pregnancy, both for their own health and to reduce the risk of HIV transmission during pregnancy. Women already on ART should continue to receive it during pregnancy. The goal is to lower the mother's HIV viral load (the concentration of HIV in her blood) as much as possible to prevent infection of the fetus. The lower the mother's viral load during pregnancy and birth, the lower the risk of infecting her baby. A baby's chances of being born with HIV are less than 2 in 100 when the mother has a viral load so low that it's undetectable.

However, if the mother didn’t get treatment and that is highly likely if the woman doesn’t know how to get it such as in underdeveloped countries, she will pass on her HIV to her child.

It is my honest opinion, that if a man or a woman is HIV positive, they should inform their sexual partner. If they don’t do this, it is a form of deceit in which forgiveness will be hard to obtain if the non-HIV partner then becomes HIV positive.

Incidentally, if a man with HIV positive ejaculates in the mouth of his sexual partner, she will not be infected as the acid in her stomach will destroy the HIV virus. That being as it is, I don’t see why he should disclose to her that he is HIV positive. However, if intends to have vaginal or anal sex, she will become infected therefore disclosure is absolute.

In India, the most recent draft of India's HIV/AIDS proposed law includes a legal duty for people living with HIV to notify a sexual partner of one’s HIV status, engage in safer sex practices, and to share only sterilized drug paraphernalia. The penalty for the first offence is 10,000 Rupees, ($153.00 USD) which is a lot of money to someone who is really poor but if the behaviour is not corrected within one year, the penalty can increase to between three months and one year in prison, along with a larger fine.

The proposed law included an exception clause that recognized barriers to disclosure and unequal responsibility for HIV prevention within sexual relationships: It said in part, “There shall be no duty to prevent transmission, particularly in the case of women, where there is a reasonable apprehension that the measures and precautions may result in violence, abandonment or actions which may have a severe negative effect on the physical or mental health and safety of the HIV-positive person, their children or someone who is close to them.

Such a law would never pass in the United States, Canada and other democratic countries. Such a law would bring about extortion and brutality against those suffering from HIV.