‘Don’t Ask, Don’t Tell’?: Rights, Responsibilities and the Non-Disclosure of Sexually Transmitted Infections

Over recent years, throughout Western Europe, there have been an increasing number of criminal convictions for the sexual transmission of HIV. In the UK, the recurrent theme in all the convictions has been one of recklessness (under section 20 of the Offences Against the Persons Act 1861) on the part of persons with HIV in their failure to disclose their status to a sexual partner. This paper casts a critical gaze on this criminalisation. It will argue not only that the criminalisation of the transmission of HIV rehearse constructions of sexuality as either active or passive and reinforce discourses that pathologise ‘unsafe’ sexualities by conflating them with promiscuity and moral bankruptcy, but that it also raises tensions and contradictions in the construction of rights and responsibilities in sexual decision making. It will consider the incongruity between notions of sexual desire as impulsive, spontaneous and unspoken and the expectation that a person with HIV can and should always exercise restraint, rationality and responsibility. This points to a further tension, whereby in the process of disclosing, a person with HIV is speaking the ‘unspeakable’, drawing on a limited linguistic repertoire with which to communicate and negotiate sexual desire. It will be argued that it is important to consider the context of a sexual encounter in determining rights and responsibilities. In a new sexual relationship, whilst acknowledging that we have some responsibility to our sexual partner, is a person’s overarching responsibility to themselves, their own bodily integrity and sexual autonomy. Finally, there will be an exploration of the uniqueness of HIV and the impossibility / improbability of criminalizing the transmission of other serious STIs and will pose the question, “What is the difference?”