So before we have sex you should know...

The Supreme Court in Canada just ruled that someone with HIV can potentially be prosecuted for aggravated sexual assault if they have sex without informing their partner of the condition.  This is even true if they use a condom, and is only mitigated if they carry a low viral load.  Advocacy groups for those with HIV/AIDS are opposed to this and feel that as long as a condom is used no disclosure needs to occur.  Normally when these sorts of issues come up I have a quick and easy answer but this one really has me stumped - should anybody with HIV be allowed to keep their condition secret if a condom is used?

Obviously giving somebody else HIV is really, really bad.  Even exposing them to significant risk of contracting HIV is a terrible thing to do and I agree that it should be considered a crime.  It is easy to say that everyone with any sexually transmittable disease should disclose that before they have sex; this would solve the problem of liability and severely dampen the problem of actual transmission.  The trouble is that if you have HIV and tell somebody that before sex you run a very large risk of them bugging out on you.  That particular conversation is not one I want to be a part of on either end.  Not only that, but we know that people don't disclose their risks on a regular basis.  A huge percentage of the population (estimates vary from 20% to 80%) has one or the other of the herpes varieties which would suggest that the great majority of sexual encounters should have a disease disclosure ahead of time... and that certainly isn't true.

So when we know that the population at large does not disclose having an STD before sex and we do not criminalize that activity.  Obviously transmitting herpes is much less important than HIV, particularly since your partner has a pretty high chance of having herpes already, but it is still a bad thing to do.  Occasionally I imagine what dating would be like and the line "So, I do get cold sores now and again, so I have herpes, but I don't have any now, which means the chance of transmission is quite low... wanna get freaky?" doesn't exactly fit well in the imaginary sex scene.

If I am not likely to utter that line myself (despite the fact that it is true) then can I really conscience imprisoning somebody for doing what amounts to the same thing?  On the other hand, having sex regularly with new people is not a right I think we need to protect and people should know what risks they are running when they have sex with someone.  I toss this around in my head back and forth and I just can't find an answer.  Somebody has to draw a line in the sand and usually I would be happy to make that decision but in this case I am pretty much content that someone else has to make the call.