Crimes of the Flesh

Last week a 28-year-old German citizen went on trial after being charged with “grievous bodily harm”.  The case has made headlines across the world.  The victim didn’t die or sustain any immediate physical injury.  Nor did the victim endure any physical pain (quite the contrary in fact).  But several facets of the defendant’s identity set this person apart from most people facing similar charges.  For one, the defendant is a pop star and a former member of one of the most successful pop bands in Germany.  Second, she is a very attractive woman who happens to be of North African descent, her mocha-colored skin and curly black mane differentiating her from what most perceive to be the standard German archetype.  However, by far the biggest thing that sets Nadja Benaissa’s case apart from all others, and the factor that has caused this story to reignite an ongoing debate across the globe, is the fact that she is HIV positive.  Benaissa stands accused of knowingly infecting a man with HIV by having unprotected sex with him, without informing him of her status.

Benaissa’s accuser claims he contracted the virus during a three-month sexual relationship he had with her back in 2004.  He also claims that she knew she was HIV positive at the time.  Benaissa admits to having unprotected sex with the man while knowing she was HIV positive.  She further admits that she did not disclose her status, but contends that it was never her intention for him to get infected, and she has expressed deep remorse for her actions.  If found guilty, she could face several years in prison.

Earlier this week Chelsea-Lynn Rudder published an insightful Huffpost article about the case.  In it she argues that prosecuting people like Nadja Benaissa is counterproductive.  She cites multiple scientific studies as well as the opinions of several authoritative bodies (including the Obama administration), all of which conclude that the so-called “criminalization of HIV” makes people less likely to get tested and therefore hinders efforts to slow the spread of the disease.

A few commenters responding to article took issue with the term “criminalization of HIV” because it implies that the system is seeking to prosecute people simply because they are HIV positive.  This is a valid objection, however I believe there’s merit in the use of the term because it addresses the stigma and the discrimination suffered by those living the disease.  People have historically associated HIV with reckless behaviour such as intravenous drug use or promiscuity and deviant (read “gay”) sex.  The disease also tends to get lumped together with marginalized groups such as blacks, Africans and gays.  So there is a tendency to view those with the disease as criminals who are less deserving of our sympathy than, say, a cancer sufferer.  After all, a significant portion of the illnesses that affect humans are transmitted through contact with other humans, and often that contact can be prevented or made safer.  But how many other diseases produce these types of criminal prosecutions?  I’d guess very few, if any.

But does this mean that HIV transmitters should get a pass?

In addition to her appeal to pragmatism, Rudder presents the viewpoint that, in cases like that of Benaissa, both parties share equal responsibility for the transmission of the disease.  Indeed many commenters agreed with this position on the grounds that every individual is responsible for protecting his or herself by practicing safe sex.

This is where I differ from Rudder and those in her camp.  To me, this argument is like saying that someone who fails to lock their front door at night, or someone who jogs through a dimly lit park, shares 50% of the responsibility if they get robbed.  Yes there are dangers out there, but failing to protect oneself should not absolve ones attacker.  Not even partially.  That being said, even if you still insist on assigning the victim an equal portion of the blame, you still have to explain why the person who contracted the disease should be the only one to get punished.  If we don’t prosecute, the people who fail to protect themselves are punished with a brand new life-long disease and an immense social stigma, while those who fail to disclose walk away with no penalty.

The pragmatic argument (i.e. prosecuting only discourages people from getting tested) is equally spurious.  While there is a place for pragmatic considerations in legal discourse, I’m a firm believer that justice has a great deal of inherent societal value in and of itself.  Therefore justice need not be justified with proof of practical efficacy (I know… that almost sounds redundant).  Even so, there is a strong practical argument for why people like Nadja Benaissa should be prosecuted.  If we decriminalize the negligent and deceitful act that Benaissa perpetrated, we send a dangerous message that this behaviour socially acceptable.  Not only do you lose prospect of jail time as a deterrent, but more importantly, you drastically diminish the social stigma that comes with exposing ones partner to a potentially fatal – and unequivocally life-altering – affliction, thereby abetting the spread of the disease.  Even if you don’t view Benaissa’s actions as being unethical, surely this potential for increased HIV proliferation must give you pause.

Nadja Benaissa

To understand the gravity of Benaissa’s crime, consider the following scenario as an analogy:

A young man with epilepsy applies for his driver’s license.  The man suffers from grand mal seizures but they’re infrequent enough that he’s certain he won’t be a danger to himself or other motorists, so he decides not to tell the administrators at the ministry of transportation about his condition.  After receiving his license, he has a seizure on the highway and causes an accident, which results in the death of a family of four, though he miraculously survives.

Should he not be prosecuted?

Like all analogies, this one isn’t perfect.  The main difference between this man and Nadja Benaissa is that everybody recognizes that his epilepsy is not his fault.  On the other hand, those who have HIV are thought to have brought it upon themselves.  And herein lies the major logical inconsistency in the decriminalization stance.  Members of this camp appear to reject the assertion that people with HIV are to blame for their own misfortune.  Yet somehow this courtesy is extended only to those already living with the disease.  According to Rudder and those of her ilk, if someone is foolish enough to contract the disease through unprotected sex, then all of a sudden, they’re at least 50% culpable in their predicament.

Another thing I find highly problematic about the “always-practice-safe-sex” argument is that it pretends that there is no legitimate forum for unprotected sex.  The fact is there are some situations in which responsible, prudent people might choose to have unprotected sex, especially if those people are in what they perceive to be a monogamous relationship.  What’s been lost in a lot of the discussion surrounding the Benaissa case is the fact that she was in a three-month relationship with her accuser.  Some may say that’s too soon to stop using protection.  But who are these people to decide how soon is too soon.  The bottom line is that everyone has a right to make an informed decision about when to have unprotected sex.  Intentionally obstructing your partner’s ability to exercise that right by concealing your status is a crime, and it should be treated as such.