February 19, 2012

This is an interview I gave to HivNorge (the biggest HIV organization in Norway) and was published February 14, 2012. http://www.hivnorge.no/id/1069

To arms against the Penal Code

By Olav André Manum (translated by google translater and Louis Gay)

Louis Gay (pron.: /loi:/ /gi:/) is 39 years old. He has tested positive on a HIV test.
He is also reviewed for violations of Penal Code §155, that is the law that makes it a crime to infect others with HIV or expose them to infection.

The case is fully investigated, but the prosecutor has not yet decided whether charges should be brought.

Gay is reported to the police by a former expartner. He insists that he has informed about the risk of infection, although the expartner later denied this in his statement to the police. The expartner, however, felt that the responsibility to avoid infection had to be divided between the two adults, and that the choice of having consensual sex with infectious Louis was the expartner alone.

- It was during an episode of oral sex without a condom - which of course is defined as safer sex - that we had an accident and I started to bleed. When the expartner later tested positive, we both took it for granted that it was I who was the source of the infection, says Gay. He is Norwegian as any, but have a French last name because his grandfather was French.

It was only when the expartner wanted them to give each other a second chance, but Gay said that no, that the violation of Penal Code §155 was presented.

- I felt great sorrow to have infected another with HIV, said Gay, adding that the complaint, just added to the burden. It has not been easy to live with the thought that he should have infected another, but luckily Gay got fast access to a psychologist. This as well as support from friends has helped him to see things in perspective and to take up the fight against what he see as an unfair and useless law. He insists that this fight is a HIV-political or a legal political struggle, and not be tied to any population group.

A useless provision

- The law is useless because it does not meet the purpose, namely to protect the community against the spread of HIV, he says. He believes that the provision affects individuals without protecting society precisely because it puts the responsibility for preventing the spread of the HIV on the HIV-positive alone. It does not help that a potential partner or lover are informed about HIV status and it does not help if they say they are helping to share the responsibility. The law as it has been practiced in Norway and in relation to Louis Gay puts responsibility on the people living with HIV alone.

This means that it is better not to know about your HIV status, and it causes that it is better to keep quiet about what you know than to inform about it. As long as you do not know, you can not be held liable and many cases of infection occur while people with HIV are unaware of their own status. The fact that the law is practiced so that the responsibility lies only with the HIV-positive alone can easily make each HIV-positive a victim of revenge or anger from expartners or former sexual partners. There are also examples of that the provision have been used to keep the HIV-positive into a relationship he or she wants to break out of.

- Police have compared the my HIV-virus with my expartners virus. They are of different types, meaning that it is not I who have infected my expartner. Nevertheless, I can be prosecuted for having potentially exposed another of infection, says Gay.

Taking up the fight

The negativ impact Gay felt because of the filed complaint and that he felt betrayed by people who had said in advance that they would line up, he has worked through by taking up arms against the provision. He has read about criminal law regarding HIV, studied other issues that have been up in court and agree that since the provision is used the way it is, then he might go to jail.

But Gay is also clear that he wants his case to be prosecuted. He wants to answer for it in court and he wants an acquittal. He wants an acquittal to result in a precedent, meaning that this judgment and its conditions will be decisive for the outcome of similar cases. The dropping of charges will not give Gay what is looking for, namely to help reveal how unjust and inappropriate these provisions in the Penal Code is.
- There are a lot of good therapy in taking up the fight, says Gay.

This Law takes away HIV-positive people their legal rights

Gay stresses that the times he has been questioned by the police he has been properly and correctly treated. Yet he feels without legal rights. This past year he had a new partner. This partner is HIV-negative. -It has been an incredible effort to build up the confidence we need to each other as a couple, he says - not least because I have experience that trust and promises can be broken.
The fact that the two have done it, he believes, is due not least to those among other things, that they agreed to journal at Gays doctor that they are both aware of the situation and the responsibility that comes with. The conclusion made by Gay, however, is that the law as it is, even after the audit and divisions in the Penal Code sections 237 and 238, undermine and subvert his right to a stable relationship, a love life and sex life.

Still unclear

- For what does the revisions in general terms mean by that it shall not apply to a marriage-like relationship, he asks. -When is a relationship akin to marriage, must people have lived together under the same registered address for two years, or is it enough that they live together? The law says nothing about this.

- And what about that condom use should be exempt from punishment? Does that mean you have to use condoms during oral sex? And what about rimming? Do you have to use licking-rubber if it should be considered as safe sex? For me all these questions just are as unclear as before, and they do not make a sexual life as HIV-positive any easier.
Gay stresses that he is not opposed to that to infect others with intent should be a criminal offense. He only says that other parts of the Criminal Code provisions should be used.

Of one thing he is certain: If he had known what experience he would get as an HIV-positive who are open about his status, private, at work and in public, he would never had said anything. Then life would have become easier. Now he's going to stay the course so he can fight against an unjust and inappropriate provision of the Criminal Code.

Penal Code provisions on HIV alone does not protect the community from infection, he says. - We need much clearer laws that also makes partners jointly responsible for their own protection and additional information to the public, so that knowledge increases and prejudices are reduced. The fact that more people are discovering earlier diagnosis and possibly choose openness is the best protection society can acquire.

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