These are the kinds of questions we as a community ought to consider in the face of the latest legal development in the case of two women who allegedly had drunken sex in a Kamloops jail cell on Aug 18.
Both women were thrown in the drunk tank for public intoxication. They met there and apparently shared more than a penchant for pints — namely, mutual sexual attraction. They became intimate with one another in the cell, in what an RCMP press release described as "what appeared to be consensual sexual contact." Seven male employees of the jail — four RCMP officers, three employees of the City of Kamloops — allegedly watched the encounter over closed-circuit TV cameras.
News coverage of the incident included unconfirmed reports that one of the two women "may" have HIV. So now the second woman has filed a lawsuit in BC Supreme Court seeking damages from her jailhouse paramour, the men who peeped on them, the provincial and federal governments and the City of Kamloops.
Describing herself as "horrified and scared and mad," the woman told the Kamloops Daily News that she feared for her health: "It was the worst thing in the world that could have possibly happened to me. Every day is a struggle."
Her legal advisor, Victoria personal-injury lawyer Erik Magraken, told the paper, "This is all about the duty to protect. If the RCMP has someone in their custody, they have a duty to protect that individual from harm. If harm comes from ignoring that duty, damages can follow."
According to Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, this is the first time to her knowledge that HIV nondisclosure has been implicated in a legal case involving lesbian sex.
Contacted by Xtra, Magraken refused to specify if the harm he was referring to is, in fact, HIV. He says he's speaking "very generally" to the notion of "any kind of harm." But according to the Daily News, Magraken did argue that "if they fail to disclose they have HIV, that is an aggravated assault and there can be no consent in those circumstances."
Well yes, criminal charges have been been laid on that basis more than once, but what's been affirmed by the courts is slightly different. To date, we know that HIV disclosure is required in instances where there is actually a serious risk of grevious bodily harm. (BC Crown spokesperson Neil MacKenzie told Xtra the police have submitted an investigative file on the case, but there has been no decision yet as to whether any charges will be laid, or against whom.)
The thing is, there's a difference between serious risk and virtually no risk. Health Canada describes the risk of woman-to-woman HIV transmission as "unlikely," and after more than two decades of tracking, the Centers for Disease Control in the US have no confirmed cases of lesbian HIV transmission in their databases.
Lesbian AIDS advocate Cindy Patton famously encapsulated safer-sex strategies back in the 1980s in this way: "Don't get semen in your anus or vagina."
Since neither woman in this case has been identified as trans, we can probably assume that this risk did not come into play.
The case "shows how much fear, prejudice and ignorance around HIV and the risks of transmission can easily divert people's attention from what really matters - the issue of people's security and privacy while in custody," says Kazatchkine.
She points to a BC Supreme Court case from 2003 where a woman was awarded $15,000 in damages after being stuck with a syringe in a cab in Vancouver's Downtown Eastside. In that case, the plaintiff claimed she was plagued with fear of becoming HIV-positive for seven years after the incident, which is not medically plausible unless she subsequently got HIV from some other activity.
Do lesbian and bi women need to care about HIV? Are alcohol or drug use relevant to sexual decision-making and the notion of consent? Do people who use substances to excess deserve support and understanding? Do prisoners have a right to dignity while behind bars? The answer to all these questions is a resounding yes.
It's important to discuss these matters — but we can do that in ways that are reasonable and that don't stigmatize people with HIV.
We can be fairly certain no HIV was transmitted in the jail cell that night. If the RCMP's original account is any indication, it appears two people who were equally willing - and equally intoxicated - engaged in erotic play, that neither took undue advantage of the other, and no one was genuinely placed at significant risk of any harm as a result of their tryst.
If anything, both women should receive counselling and support about their public substance abuse to help protect them from risk of actual sexual violence. That would be horrible and criminal - but there's no evidence to suggest that's what happened here. That reading of the facts of this case only makes sense if your view of all people with HIV is to see them as predatory and intrinsically dangerous.
I feel for the woman who's suing. It's a shame she has not received appropriate counselling to understand that she's likely not in any medical danger. Misinformation about HIV risk is unfortunately common in Canadian society — but that lack of awareness and education is not the personal responsibility of the other woman.
I'm also sure the complainant has experienced significant duress from the media scrutiny and the violation of privacy that spawned it. In fact, she shares that unfair emotional burden in common with the other woman - the one who "may" have HIV. Indeed, maybe the most reasonable course of action would be for the two women to engage in a joint legal action instead.
They already demonstrated a willingness to unite and come together that one night in August - perhaps it's time for them to do so again.
Shawn Syms is an advocacy journalist who has written about HIV/AIDS and other topics for more than 20 years.