John Roughan: Risk versus the right to a one-night stand

Casual sex, I suppose, is not for the squeamish, not now anyhow. A case in the Wellington District Court has established that carriers of HIV are under no legal obligation to mention their infection to a person contemplating sex with them.

This decision is more than a week old and talk radio will already have delivered the popular verdict. But I am not sure we have got to the nub of it.

The case, like most that produce wrong-headed law, required a judge to choose between two conflicting human rights. In this instance, a woman's right to information that could affect her health against a man's right to a sex life.

The man and woman made contact on the internet and after a month or so they met, had sex the following day and never met again. Months later police told the woman the man was HIV positive. She remembered that he had used a condom at her instigation but not before he had let her arouse him in her mouth with no protection.

The police charged him under a section of the Crimes Act which makes it an offence to knowingly endanger the life, safety or health of another person by failing to discharge a legal duty. The act says the legal duty of "persons in charge of dangerous things" is to take "reasonable precautions" against the danger.

You and I might think that reasonable precautions, if not common decency, requires that the person for whom the precautions are being taken should have to be informed of the fact. But Judge Susan Thomas in Wellington didn't think so.

She made a straightforward district court decision, accepting medical testimony that condoms were adequate protection for genital sex and that the risk of oral transmission of HIV was so low as to require no protection at all. And since the Crimes Act said nothing about informing the endangered person, she decided this man had satisfied the law.

The case needs to be taken higher. A High Court judge might well read common sense into the law and find it a reasonable precaution that a person at risk should be informed of the fact. Only that person knows whether the standard precautions would be adequate in the circumstances. What if the woman in this case had had an injury in her mouth?

Regardless, she had a right to know. She told the district court that had she known the man had HIV she would not have had sex with him. Her decision may ignore the efficacy of the precautions the man has proposed, but she has that right.

Judge Thomas' written decision does not treat this case as a conflict of human rights. It would take a higher court to resolve whether one person's right to casual sex outweighs another's right to health information.

And there is no dispute that we are talking only about casual sex here. Articles published this week acclaiming the Thomas decision, make that clear.

On this page on Tuesday an HIV positive man, Michael Stevens, studying at Auckland University for a PhD in the social context of HIV infection, wrote that a nasty backlash was understandable because, "the sexual act is one of the moments we make ourselves most vulnerable. Trust is seen as an essential requirement [for] the ideal state of bliss we are told this act should engender."

This might be true "on an emotional level", but emotions alone were "notoriously unreliable". Trust had no place in the "great new bazaar of the internet".

Mr Stevens said: "The technology has in many ways outstripped the culture. Expecting sexual partners met this way to comply with our older, emotionally formed cultural beliefs simply will not work."

Noting the woman in the Wellington case was not infected, he wrote, "No harm was done on a physical level. Emotionally, I am sure she felt harmed and betrayed, but that is because she was moving in the new world of internet liaisons with cultural and emotional expectations based in another age."

Another PhD student of the virus, Peter Saxton of Otago University, writing in the Dominion Post on Wednesday, dismissed the case for informed consent with the reminder, "This is casual sex: exchange of private personal information is often suppressed between strangers, such as income or previous marital history, regardless of whether it is deemed 'relevant' by a potential sexual partner".

The subject is, of course, someone's possible infection and death, not income, marriage, employment, accommodation, or any other rights that HIV carriers have to defend. Weighed against even a low risk of infection, how sacred is the right to a one-night stand?

The right to personal health information normally trumps all other considerations in legal and ethical conflicts today. And that is true whether or not the information will be rationally assessed.

The cellphone signal is poor at my house because some people in the locality believe cellular transmissions will harm their babies. I find the consequences frustrating, but I don't suggest a cell tower should be installed without their knowledge, as I am sure it could be.

These supporters of the Thomas decision, like the judge herself, emphasise that the absence of a legal obligation does not remove a moral obligation to inform partners of the disease. But it is hard to trust them on that level because the consequences of disclosure would be the same. The partner would head for the hills.

For the likes of Mr Stevens it comes down to this: "Those who have HIV should be able to have a sex life in line with Judge Thomas' comments that all reasonable precautions are taken."

Yes they should - if they can convince a properly informed prospective partner that the risks are as low and the precautions as effective, as they convinced Judge Susan Thomas.

But it is tempting to wonder whether Judge Thomas would have made the same decision in bed.