In its report released last month, the Global Commission on HIV and the Law called for the decriminalization of personal narcotics use, "voluntary sex work", and non-disclosure of HIV-positive status to sexual partners.
Should we care?
"Rather than punishing people who use drugs but do no harm to others," the report states, "governments must offer them access to effective HIV and health services, including harm reduction programmes . . ."
Notwithstanding the fact that addicts need help, the idea that governments must not prohibit drug use but must create and fund programmes to reduce harm from drug use is ludicrous—to some of us, anyway.
But not to Canada's highest court. The Supreme Court last year ruled the federal government's refusal to extend its criminal law exemption to Vancouver's so-called "safe injection" site, Insite, unconstitutional. Whereas the use of criminal sanctions was found to be ineffective in promoting public health, Insite delivered tangible health benefits. Similar exemptions will likely be required for all safe injection sites in the future—the ironic result being that possessors of illegal narcotics will be shielded from state prosecution so long as they are in possession on state-designated, state-funded injection sites.
When it comes to prostitution, the report states: "Criminalisation, in collusion with social stigma makes sex workers' lives more unstable, less safe and far riskier in terms of HIV." It therefore opposes not only the prohibition of prostitution, but also the prohibition of street solicitation, the operation of brothels, and living off the profits of prostitution.
Here, too, Canada's courts have acted. The Ontario Court of Appeal struck down the Criminal Code prohibitions on keeping a "bawdy house" and "living off the avails" of prostitution in March of this year. Again, a deciding factor in that case was that the law was said to cause much greater harm than it prevented. The Crown is appealing.
The final part of this contemporary social issues trifecta is the crime of non-disclosure of HIV infection to one's sexual partner. Canada's law making this act a crime intends, of course, to provide protection from those who would knowingly expose someone to the risk of a deadly infection. The idea of putting another person at risk for one's own sexual gratification—even if the potential victim is behaving irresponsibly—is morally reprehensible, is it not?
The Global Commission declares: "Arresting HIV-positive people for seeking pleasure and intimacy is a defeatist and cynical response to the failure of nations to confront the [AIDS] epidemic." The Commission argues that such laws serve only to attach stigmas to HIV-positive persons, inhibiting them from seeking treatment and from taking protective measures during sexual activity, thus causing more harm than such laws prevent.
In Currier, 1998, the Supreme Court ruled that the duty to disclose exists wherever there is a significant risk of harm. Since this standard has produced years of uncertainty and confusion, the Crown has sought to do away with this limitation. The Quebec and Manitoba Courts of Appeal, however, have ruled against the Crown in two recent cases. We await the decision of the Supreme Court on these two appeals.
How do we make sense of these developments? Christian legal scholar John Warwick Montgomery argued in 1975 that Western jurisprudence, by opting for moral relativity, was creating the conditions for its own destruction. "[T]he modern jurisprudent," he writes, "made the fundamental error two centuries ago of thinking that human values could be sustained apart from God's revelation of himself in Scripture. An attempt was made to live off the inherited moral capital of the Bible after dispensing with it."
The Commission, however, claims that "by dividing people into criminals and victims or sinful and innocent, the legal environment can destroy the social, political, and economic solidarity that is necessary to overcome [AIDS]." Further, "narrow interpretations of religion," especially where these inform laws, can "make those most at risk more vulnerable by condemning and criminalising their identities and behaviours." The Vatican is even attacked in the report for choosing to teach people responsible behaviour over and against advancing the Commission's "proven" harm reduction strategies.
And then, this: "[R]eligious and secular actors must work together to harmonise the practices of faith with the ideals of human rights . . . The notion of fundamental human rights grew out of natural law concepts, often founded on human dignity ascribed to divine characteristics of humanity."
This philosophical inconsistency, indeed hypocrisy, in such a report would not be so disconcerting if it were without influence. While our courts cling to some notion of a "higher law" in the guise of "human rights", our historical Judeo-Christian moral framework has been rejected and our inherited moral capital exhausted. Consequently, the law is reduced to a pragmatic instrument of social policy, a tool for mitigating the harmful effects of certain life choices; but it must not judge life choices themselves, nor offer moral direction for society.
If historical Christian conceptions of law are considered an impediment to the chief good of harm reduction, do we expect our courts to rely on us to define harm? If we cede our laws to mere harm reduction, can Christians even participate in legal debates? What will tomorrow's social fabric look like if we cannot?
