The other day, I came across this article through a contact on my Facebook. For an otherwise somewhat productive article about rape culture and sexual assault, the male author writing to a male audience makes two particularly alarming, counter-productive claims. First, the author claims that someone who, against their own ethics, unknowingly engages in a consensual sexual encounter with someone who is married, has been sexually assaulted. And second, the author claims that someone who unknowingly engages in a consensual sexual encounter with a carrier of a sexually transmitted infection has been sexually assaulted (the author further specifies among the comments that if the carrier was unaware that they are a carrier, that this encounter then qualifies as a “grey area”). That I pointed these two issues in the article out to a white feminist who is seronegative and sex-positive (and to the article’s author, among the comments) has resulted in yet another tired old repetition of a problem older than I am, that I’ve never hesitated to critique: solidarity is for seronegative sex-positive white women.
Apparently it needs to be said. If you sleep with someone and find out later, to your ultimate horror, that they were married, you haven’t been raped. Nor have you been “sexually assaulted”. You’ve been a fool and you probably feel like an asshole—which may or may not be further facilitated by that person’s badgering spouse, who probably also thinks you’re an asshole (and with good reason). In other words, you’ve been formally inducted into the drama of the human species, but there is absolutely zero reason for anyone to question your capacity to give consent in retrospect, let alone for anyone to involve the power of the state in sorting your affairs out for you. Ethical and moral evaluations aside of what your little-did-you-know-they-were-married sex partner did, your fully-formed capacity as an adult to offer your consent to sex does not hinge upon your partner’s honesty. It hinges upon your clarity of consciousness. That doesn’t excuse someone lying about their marital status. It just doesn’t make it rape. And though the argument about someone withholding their STI status is more complex (with no help from the injustice system in simplifying that), I nevertheless reach the same conclusion.
What is the Difference Between Sexual Assault and Rape?
Though I only addressed this issue with the author himself, it still needs to be said here. Sexual assault is legal terminology. Different countries and states define sexual assault variably, with some features in common. A common understanding of rape (i.e., sexual contact gained by physical force, drugging, or coercion such as threatening physical force) generally fulfills the legal definition of sexual assault. But rape is often under-reported (or simply unreported) to law enforcement, not given pursuit past the reporting and initial evidence collection stage (or simply dismissed) by law enforcement, tried under a completely different set of criminal law other than sexual offenses (assuming a court even hears the charges), or denied a criminal conviction of any kind—either before a criminal court trial even proceeds, or as the result of a lengthy and highly stressful trial proceeding, during which the burden of proof is laid entirely upon the victim. The author of the article even acknowledges many of these extremely frequent failings of North American jurisprudence himself (although it seems highly unlikely that he has any direct experience of his own pursuing a criminal conviction of any kind against an assailant); and yet despite his transparent acknowledgement, the author nevertheless relentlessly toys around with legal terminology of which he bears little to no understanding.
The author of the article in question doesn’t want to talk about rape. He’s only interested in discussing sexual assault. Well, perhaps this is because if he limits his understanding of rape culture to what the law states about sexual assault, the work is already done for him. There is also something to be said for the sustained confidence this male author has in the legal definitions of sexual violence despite the nature and frequency of the failings of the justice system for survivors of sexual violence, and the term for this is male privilege—for it is hardly a secret that all law has historically been written by and for the benefit of white men above anyone else in our society. And if the justice system — which is by matter of default such an abysmal failure to a vast majority of survivors of sexual violence — is where we turn to first to frame our understanding of sexual violence and rape culture, then we have failed all survivors and victims of sexual violence and rape culture before even uttering our first words of solidarity with them.
Sex-Positive White Feminist Notions of Justice
It seems based on my years of experience and observations among sex-positive communities, that sex-positive feminism and an enthusiastic but selective embrace of existing standards of law go hand-in-hand. Sex-positive feminists are generally in support of legalizing sex work, for example, which necessarily means working to reform several laws that currently criminalize it entirely (or in so many concurrent aspects that it is for all intents and purposes functionally criminalized). They are also generally in favour of gaining or maintaining access to legal abortion and contraception, which may at times translate into advocacy for law reform or for better sex education. However, the issue of how sexual assault is defined by law when a sexually transmitted infection is involved is where sex-positive feminism rapidly becomes synonymous with injustice, racism, homophobia, and transphobia.
As stated above, the author of the article under critique has taken the stance that when a sexually transmitted infection is involved and one party is unaware of it, a sexual assault has happened (and, notably, if both parties are unaware, it’s a “grey area” in accordance with written law in some states). This is also a common stance among sex-positive feminists, the general public, and written law (both historically, as regards “venereal disease”, and currently, as regards HIV/AIDS). Like the author, written law only permits a “legal grey area” for the case of possible exposure by a carrier who was unaware of their status at the time. But that this is even considered a so-called “grey area” is important. What this means for the carrier who was unaware of their status until either unintentionally transmitting their infection to someone or getting positive test results after unknowingly exposing someone, is that they haven’t committed a criminal act, but they don’t have any real legal defense either. Their right to bodily autonomy will always be under imminent threat of being stripped away unless and until it is no longer a “legal grey area” to be a carrier of an STI without knowing it prior to the threat of legal action or criminal conviction. This is something all sexually active adults should be concerned about, because STIs do not target human demographics selectively, even though several marginalized communities (i.e., people of colour, lesbians and gays, trans people) suffer disproportionately.
All of this should also strike sex-positive feminists in particular as important, because their sense of justice has pre-eminently lapsed for all those who have already become carriers of STIs at some point in their sexual health. Where is the justice for their exposure within this narrative—espectially for those who were unaware of their status until the power of the state became intimately involved in their personal affairs?
Canadian History Lesson: Sexual Health and the Justice System
The question I have just posited about the sex-positive feminist framework and its typical interpretation of the presence of an undisclosed STI as a form of rape (a stance clearly adopted by the author of the article under critique here), is an especially cogent point to consider in light of sex crime laws and legal precedents specifically oriented around dealing with HIV/AIDS. As it currently stands, a precedent has been set in Canadian law, that an otherwise consensual encounter between someone who has become seroconverted (i.e., is HIV+) but does not disclose their status, and someone who is seronegative (i.e., is HIV-), is an aggravated sexual assault punishable by a minimum of five years to a maximum of life in prison—giving the body of someone who has seroconverted the same weaponized legal status as a loaded gun. From 1998 until 2012, this was regardless of whether or not a condom was used during the encounter, regardless of whether or not the seroconverted party was even medically capable of transmitting infection to another human being, and regardless of whether or not the seronegative party was subsequently seroconverted. Since 2012, the law has been changed to allow a “legal grey area” where a condom was used, but only for persons with a “low viral load” — the maximum threshold of which has never been specified, thus making this recent change to the legal precedent essentially meaningless.
Historically, the criminal code of Canada actually had a section dealing with transmission of “venereal disease”, from 1919 to 1985 until it was removed entirely. As this history pre-dates the HIV/AIDS epidemic in North America, only three STIs were considered “venereal diseases”: syphilis, gonorrhea, and a bacterial infection called “soft chancre” (which is now known to facilitate transmission of HIV, but which only presents on this continent among people who have made sexual contact with high-risk drug users and/or high-risk sex workers while travelling in developing nations). Successful transmission of the “venereal disease” to other people was what was considered a crime under this section of the criminal code, and it was required that this complaint was made by more than one person (i.e., behaviour that would give some indication of either reckless negligence or malicious intent). It was not considered a crime, however, if the accused had any reason to believe that they were not a carrier of any of these STIs, or had any reason to believe that they were not capable of transmitting their infection to another person at the time of the encounters (e.g., having already received a course of antibiotics to treat it, or using a condom).
This now-repealed section of the Canadian criminal code stands in sharp contrast to the legal precedent that has been set for possible HIV exposure—which amounts to a sexually active adult launching an accusation equivalent to rape at gunpoint (not an uncommon comparison) against a seroconverted adult, founded entirely on the basis of the seronegative adult’s perceived risk in hindsight. Once the complaint is made, the possibly-exposed seronegative adult’s legal status in a court of law is suddenly equivalent to that of a 14-year-old, as if being HIV-negative and in fear of seroconverting has some implicit mitigating effect on a person’s mental faculties or their ability to take responsibility for their own sexual health (i.e., a 14-year-old under Canadian law is not considered culpable in any respect during sexual encounters with adults, except for encounters with adults who can prove beyond all doubt that they did not know despite making an exhaustive effort to determine the chronological age of the minor); and the seroconverted adult’s legal status is equivalent to an adult facing charges for a sex crime involving a minor (i.e., ignorance is not a defense).
Scapegoating the Seropositive
The legal precedent that has been set in Canada with respect to sexually active adults living with HIV/AIDS isn’t criminalizing non-disclosure. It’s criminalizing the state of knowing oneself to be HIV-positive. The only defense is simply not getting tested and therefore not knowing your HIV status — which is exactly how most people become seroconverted in the first place. No testing also means no treatment, which means a hazardously high viral load. And once again, there can be no justice served for people who become seroconverted by people who didn’t know their status at the time. There was no justice for the local man who, having touched many of the lives of people involved in my life, was aggravated to suicide after a woman he unknowingly seroconverted initiated a gossip mill to campaign for his ostracization from the community. And there will never be justice for her, either, even while she learns in the wake of his aggravated suicide, exactly how much stigma people continue to face for living with HIV/AIDS.
Speaking as someone who is seronegative despite living through years of high-risk behaviours as an adult in which I very easily could have become seroconverted, my mental faculties are not now — and were not through those many years — comparable to those of a 14-year-old who is recklessly self-endangering but unaware and therefore neither culpable for their own behaviours nor capable of giving adequate consent—a state of mind which I remember accutely well, as a survivor of a sexually abusive household; especially now that I am observing the behaviours and mental faculties of my friends’ children while they are being raised in healthy homes. I do not suddenly have the mind of a child simply because I am the HIV-negative party in a sexual encounter with someone who is, unbeknownst to me at the time, HIV-positive. I am still equally as capable as they are of choosing whether or not to use safer sex barriers, getting myself educated about the risks I am assuming in being sexually active with people whose sexual health status I cannot be certain of at the time, enquiring into their sexual health status if I think I might want to have sex with them, and/or waiting until we’ve been tested together before deciding to have sex.
Once again, ethical and moral judgments of a seropositive person’s non-disclosure aside, there is no valid reason for suggesting that the capacity of a seronegative adult to provide consent to sex rests upon anything but their clarity of consciousness. HIV isn’t a virus that clouds the judgment of the potentially exposed party, nor does it cloud the mental faculties of those who have seroconverted. Being in between the sheets with someone who is living with HIV/AIDS isn’t like having so much to drink that you can no longer rationalize the consequences of your actions, stay focused and alert, or stay conscious through your encounter. Being exposed to the possibility of contracting HIV, whether you’re conscious of the risk you are taking at the time or not, is not like being drugged with GHB. Having sex with someone who either doesn’t know or doesn’t disclose that they are seropositive at the time isn’t like consenting to bring a replica gun into your seduction routine for the extra thrill and excitement, and then discovering after the fact, to your unfathomable terror, that it was real and loaded the entire time. People living with HIV/AIDS aren’t seroconverted into narcissistic psychopaths.
Informed Consent: It Doesn’t Mean What You Think it Means
The author of the article in question, as if in homage to every seronegative sex-positive white feminist I’ve ever encountered (including the one who raised my awareness about the article, with whom I had a subsequent but brief conflict ending in her passive aggression over my critiques of it), insists that marital status and STI non-disclosure both qualify as “sexual assault” on the basis of consent obtained through fraud—because he expects any married or seropositive person to provide “informed consent” or it’s rape. I’m leaving aside the marriage issue here, because I’ve already addresse that at the beginning of this blog post. I’m also going to avoid any further breakdown of exactly how patronizing and infantilizing the assumed standard must be for the mental faculties of the seronegative party, in an otherwise consensual encounter with someone who is seropositive, in order to argue that this is a form of sexual assault. Instead, I’m going to focus on what even more legal jargon means — because it’s clear to me that the seronegative sex-positive white feminists who toss it about, while people like the author of the article I’m critiquing watch and later repeat, have no idea what they’re actually saying.
Firstly, “consent obtained through fraud” is legal jargon. When it is applied to sexual encounters, this jargon implies that the person who sought consent for sexual contact did so by presenting their proposal as something else. An example is someone who passes themselves off as a doctor, clinician, or otherwise possessing some practical medical expertise, who makes their case to an individual who is unaware, who then consents to being touched for practical medical purposes—and finds themselves being touched for sexual purposes instead. In other words, the person who has been sexually assaulted had consented to the nature of the proposed contact, but not to the quality of it. There is also an element of unequal power relations in that example, directly analogous to the unequal power relations between a minor and an adult, because doctors and paramedical professionals occupy a well-deserved place of implied authority and trust. The same argument does not apply to someone who is seropositive who pursues the sexual interests of someone who is seronegative and is agreeable to this attention from them. An adult’s STI status or lack thereof has no bearing on their capacity to offer or withhold their consent for a sexual encounter.
Secondly, “informed consent” is legal jargon specific to the practice of medicine. If I’m a vascular surgeon and you’re a patient who has been referred to me for the treatment of an asymptomatic abdominal aortic aneurysm (a silent but life-threatening condition), I need to establish informed consent with you before I roll you into the operating room and fiddle around with your inerds. I will do this by taking a relevant account of your history, giving you a thorough physical examination myself, and sending you for relevant diagnostic testing, all before explaining to you the risks, benefits, and alternatives of undergoing the surgery necessary to remove the imminent threat to your very life. You, as the patient, have the right to question everything in the process, and to get honest answers. You have the right to refuse to cooperate with any step of the process or to refuse the surgery. You also have the right to be referred to someone who you feel is more competent, if for example, this is the first time I as a vascular surgeon have removed an aneurysm of this nature. There is literally no comparison between this standard of consent and a common understanding of consent for sex between competent adults.
If Informed Consent for Sex was Standard
If there was a standard for consent that applied to sexual encounters, I’ll tell you what it would look like. You and I are sexually interested in each other. But before we take our clothes off and get it on, we interview each other extensively about our sexual histories and current intimate relationships, any relevant insight we have into specific partners in our sexual histories or currently, our past and current knowledge and habits around the use of safer sex barriers and contraceptive methods, any relevant vaccines or treatments we have received for STIs (which includes pap smears, for those of us who have cervices), any injuries or traumas we have incurred through sexual contact (such as incest, child sexual molestation, sexually abusive relationships, and/or rape), and any further relevant experiences that may factor into one another’s decision to offer or withhold consent (such as a history of sex work or sexual encounters with sex workers, intravenous drug use or sexual encounters with IV drug users, same-sex encounters or encounters with trans people, and even relevant political stances on issues of sexuality, reproduction, and sexual violence). Hell, we might even ask for referral notes from prior partners. And once that completely unsexy conversation was over, we’d go get full STI testing done together and endure another completely unsexy wait for a week before we went in together to get the results. And at the end of all of it, we’d check our day planners and schedule in an appointment to get it on, then sign waivers formally establishing our “informed consent” to fuck.
No one acts on or reasonably expects informed consent for sex. Fucking no one. Not me. Not you reading this. Not the average person either of us may or may not sleep with next week. Not the author of the article in question. Not seronegative sex-positive white feminists. Because if they did, they would have so thoroughly circumvented even the remote possibility of being unknowingly exposed to HIV, that they wouldn’t have to make up arguments that justify looking at someone who is seropositive as if the body they inhabit was a loaded shotgun. And given that it is people of colour, gays and lesbians, and trans people who disproportionately suffer from HIV/AIDS; who currently are still and historically have all been perceived as an imminent threat simply for existing (let alone for having sex with other consenting adults), it’s high time seronegative sex-positive white feminists change their tune.