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Ann Bradley

The last straw in safer sex

It should come as no surprise to anybody that Jack Straw wants to make it a criminal offence for somebody with HIV knowingly to risk transmitting to somebody else.

Don't for one moment think that the mind-boggling legal complexities of drafting such a law would get in his way. You know, those complicated little details about how you would prove that some-body was acting with criminal irresponsibility while having sex. Or how you would prove that one person was in ignorance of the other's HIV status, or that the perpetrator of the supposed crime was in full knowledge of their own state of health.

Don't for one minute think that the small matter of how the government would define which infections it would become criminal to spread will interfere with New Labour's desire to deliver retribution. Will they limit it to HIV? If they do they have to justify why not other sexually transmitted infections? If HIV is singled out because it kills, the government will have to justify why it is not including other infections that are potentially fatal. What about TB? What about flu, for that matter? HIV is relatively difficult to spread - even via unprotected sex (the high incidence of HIV negative partners still vexes the boffins who study the virus). Flu, on the other hand, is as easy to spread as gossip. A nurse working at a geriatric home while struggling to beat off flu symptoms is potentially more deadly that an HIV positive man who seduces a woman into sex without a condom.

For Jack Straw the little details and complexities don't matter. The days when politicians used to agonise over whether laws were justifiable, or enforceable, are long gone. These days a problem is reported in the papers and legislation proposed. It does not even have to be a big problem. Nobody can seriously argue that hoards of HIV-infected maniacs are roaming the country recklessly exposing battalions of lovers to a possible lingering death. The issue has become a topic of discussion because a court in Cyprus jailed an HIV positive Cypriot for failing to inform his English lover that she risked her health by having sex without a condom.

You can understand why the woman was bitter. Although her actions seemed rather more like the fury of a woman scorned, she insists she was motivated by concern for the well-being of other women who might fall prey to her Romeo's charms. It is futile to question motives - we seldom see ourselves as others do. But when I heard the news about how this HIV positive man with a young family and a short life expectancy had been given a custodial sentence, my response was along the lines of: 'Thank God it couldn't happen here.' Jack Straw's was obviously: 'My God, it couldn't happen here - we'd better do something about this.'

There are a number of reasons why it is wrong to allow the law to sniff its way into people's sexual relations in this way, and it is distressing that so few people seem to have twigged the broader consequences. The main problem is what it says about the way we see ourselves, our relationships and the state.

If we are to have any self-respect, then we have to accept that there are some things that we and we alone must take responsibility for. The type of sexual relationship we have with our partners, including whether they do or do not use a condom, is just such a thing. When two people decide to have consensual sex, neither is a passive victim in need of protection by an all-powerful state. When somebody agrees to sex without a condom they are taking a calculated risk and the responsibility must be theirs. Try as I might I cannot visualise this Cyprus case as one involving criminal and victim - more a chancer and a naive fool who paid a high price for a passionate romance.

It does not take much insight to see where you end up when you start off down this litigious road. If you accept that the knowing transmission of an infection is an offence, how does society cope with people who consciously decide that under such circumstances they would rather not know? Once there are circumstances where the transmission of HIV is made a criminal offence, how long will it be before compulsory HIV testing creeps onto the agenda? Official disclaimer forms might follow so that those who choose not to use condoms can demonstrate that they have waived their right to prosecute.

The last thing couples need is the threat of the law sitting on the end of the bed prescribing what you must or must not discuss with your partner before you get your leg over. In so far as sex is risky it is a domain in which we need to watch out for ourselves. It infuriates me that Mr Straw feels that he should take any responsibility for what I - or my chosen partner - choose to do or not do in bed. It horrifies me to think that he is effectively considering making unprotected sex a criminal offence.

The tendency to see a new law as the obvious answer to any issue is not exclusive to New Labour. The Tories, remember, introduced laws to muzzle dangerous dogs and to ensure compulsory seat belt-wearing in the back of cars. But at least they generally stayed out of the bedroom. Straw and his colleagues show no such sense of decency.

Reproduced from LM issue 103, September 1997

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