Dance with death
Karen Kissane and Julia Medew
April 21, 2007
Love is not always a many splendoured thing. For Andrew, a young gay man in love with an older partner, it was what led to him exposing himself to HIV.
His partner was HIV-positive and for months they used condoms every time they had sex. But the partner had trouble maintaining erections while wearing a condom. He suggested they break up.
Says Andrew (not his real name), "I said, 'Yeah, all right'. But I spent a week acutely suicidal and went back and said, 'I can't do it. I'll wear the risk.' Some would say that's emotional blackmail, but he did the responsible thing both in effectively saying 'We have to stop doing this,' and by accepting me back when I found it impossible to walk away. It takes two to bareback (have unprotected sex)."
Andrew also acknowledges that, at times, part of him longed to be infected: because he would feel closer to his partner, because he would feel freed of safe-sex constraints with other HIV-positive gays, and because he would never again have to feel the odd one out in a group encounter with HIV-positive men. After 12 months of unprotected sex, he got his wish. And he has learned the truth of the axiom that we must be careful what we wish for.
Twenty years after the Grim Reaper advertising campaign scared the hell out of people having new or casual sexual encounters, the question of HIV and how best to manage it has burst back onto the public stage. Victoria's infection rates are at a 20-year high; the Department of Human Services was notified of 334 cases of HIV last year, 17 per cent higher than the 285 in 2005 and the highest number since 1987.
Meanwhile, the recent committal hearing of Michael John Neal, 48, who is charged with deliberately infecting two men and trying to infect 14 others, has revealed an extraordinarily reckless subculture in parts of the gay community, and an apparently timid one among health authorities charged with keeping the public safe.
Despite the department receiving 10 complaints about Neal's alleged behaviour over five years, the state's former chief health officer, Dr Robert Hall, told Neal's committal hearing that a child pornography allegation was the "trigger" for him to refer Neal's case to the police last year.
It was also revealed last month that a bungle within the department had prevented Hall from receiving an expert panel's recommendation in January 2006 that Neal be locked up to protect public health. It is alleged that some time between the panel's recommendation and Neal's arrest in May, he tried to infect his 16th alleged victim.
Health Minister Bronwyn Pike sacked Hall after she discovered that the department had failed to tell her that police were investigating three other HIV-positive people the department had been monitoring. Pike herself is now on shaky ground. Critics have demanded to know what she knew and when, and the Opposition has called for her to resign.
Michael Wooldridge, the Federal Government's chief adviser on HIV, has said Neal's case is part of a broader problem in Victoria. "It's symptomatic of the complacency, it's symptomatic of the lack of sense of urgency, so it's not surprising that if (a bureaucratic) catastrophe like this had to happen in Australia, it happened in Victoria," he said.
At Neal's committal, gay men told of drug-fuelled orgies in private homes, sado-masochistic games, sex that included the wearing of penis piercings that can tear the flesh, the picking up of teenage boys in toilet blocks, and faceless group encounters in "dark rooms" — unlit rooms where it is impossible to recognise another person — in sex-on-premises venues in the city.
As Neal's lawyer kept pointing out, these activities are perfectly legal between consenting adults. And, as one observer of the hearing said wryly during a break, "there are probably lots of heterosexuals who would love to know where they could go for the same kind of thing".
But you have to wonder whether conversations about condoms are a regular feature of the encounters described. As for revealing HIV status — according to Andrew, "It's fairly rare, in my experience, for anyone to ask the question outright."
Drugs are central to the unbridled promiscuity of the group-sex scene. One HIV worker who did not want to be named told The Age that while the majority of young gay men would have nothing to do with casual group sex, an individual who is part of that scene might have 500 sexual encounters over six months, fuelled by the priapic powers of methamphetamine, commonly known as crystal meth: "It gives you an erection that lasts for hours and hours."
A witness told the Neal committal that crystal meth "is used by a lot of gay people. It assists with opening your anus (and) making you stay harder for longer, and you lose your inhibitions. It helps to ease the pain of violent sex."
At Neal's committal, witnesses also spoke of fantasies about catching HIV. Gay men spoke about alleged "conversion parties" where positive men ("gift-givers" or "breeders") have sex with negative men who want to catch the illness ("bug-chasers"), or ones who do not know that they are being exposed.
While no one claims that this subculture is widespread, the fact remains: a small number of positive people who each have sex with hundreds can do a lot to spread the virus. Is it time to examine the psychological issues around HIV for some in the gay community, and time to reach for the scythe in a new public health education campaign?
Also in question are the rules about when a person's HIV-positive status should be disclosed. Should HIV-positive people be required by law to tell prospective sexual partners of their health status; should doctors or counsellors breach an HIV patient's confidentiality to prevent harm to others; and should there be a definite point at which the Health Department is obliged to disclose an individual's dangerous sexual behaviour to police?
In Victoria, there is no clarity on any of the above questions, and clarity is needed because even AIDS activists acknowledge that some gay men have become more relaxed about safe sex now that there are better drugs to treat HIV.
Andrew is one who thinks this way: "A significant factor in my decision to have unprotected sex (with my partner) was because his viral load was undetectable … and I thought if it did happen, it wouldn't be as catastrophic as it might have been 10 years ago … If HIV was still fatal, I would have had a different attitude to it. I'm of the generation that hasn't seen people die."
Andrew is not bitter about his illness, because he feels he made a choice to expose himself to risk. Others who find themselves infected feel deceived and abused. While Victorian AIDS Council chief executive Mike Kennedy says most infections are passed on innocently by people who did not know they had the virus, the HIV worker challenges this: "The majority of people that I have known have all been recklessly infected."
The worker says there are three degrees of recklessness. Some HIV-positive people drop hints to see if they are picked up on, perhaps mentioning the fact that they are going to a clinic or seeing a counsellor. If the partner does not inquire further, it is assumed that the partner is HIV positive too. "I've had a number of cases where this has happened in the past month."
The next level of recklessness is where a person who is HIV-positive goes into a sexual encounter with the attitude that it is the other person who should be assuming responsibility for raising the issue. Some have a view, the worker says, that " 'the onus is on them to ask me, if they are negative and they care about their status. If not, I'm not going to disclose it because it's not their business unless they make it their business.' That's probably the stance of at least 50 per cent of HIV-positive people in Australia," the worker says.
The third level of recklessness involves deliberately lying and/or trying to infect others, a phenomenon the worker says is extremely rare. The motive "is first of all revenge, societal revenge because 'some bastard gave me this, I am going to get back at all those gay bastards'."
In NSW, HIV-positive people are obliged by law to reveal their status before having sex with a new partner. Victoria has no such provisions and Mike Kennedy thinks it should stay that way. As long as people are having "safe sex" — which he defines partly as always using condoms — he believes the decision about whether to disclose should remain theirs. He says research has shown that "HIV-negative guys are keen that HIV-positive guys disclose to them but in the same research, when asked 'What would you do?', the answer is, 'I wouldn't have sex with them.' "
Shouldn't that be their choice? What about informed consent?
"What HIV-positive men experience in this situation is that the rejection is often physically and emotionally violent, and then the negative guys tell all their friends that they are HIV-positive," Kennedy says. "So it's a huge disincentive to disclose."
He says that mandatory reporting might lull negative partners into a false sense of security because they might assume that no disclosure means negative status, and that it might discourage people from being tested: "You can only disclose if you know."
This is already an issue, according to Andrew. "I know people who have not been tested for five years and might have had between 300 and 400 unprotected encounters during that time who still say, 'Oh, but I'm negative,' and you say, 'Well, how do you know?' And the reality is that they don't," he says.
"Protection" is the mantra of safe sex but even condoms offer only relative protection, and they are not enough to get a person off the legal hook if condom failure leads to infection of a partner who has not been told, according to barristers who specialise in the laws of negligence.
Ross Gillies, QC, says, "As far as sexual partnerships are concerned, you would certainly have a duty of care to your partner because it's a foreseeable risk of injury to people who are sufficiently proximate to you. It's based on the 'neighbourhood principle' — when someone is in a relationship, not just a sexual relationship but any relationship, that of an employee or a passenger in a car, it's activated."
He says it would be a form of assault to knowingly inflict the disease on someone and that wearing condoms without disclosure does not eliminate legal risk: "It would be all right if you had a super-dooper Michelin condom that's incapable of blow-out, but even the manufacturers acknowledge that condoms can fail."
Lawyer Tim Tobin, QC, agrees that there is a common-law duty to inform and says the manner of a sexual encounter might also be taken into account if a partner were to sue: "If you are jumping off chandeliers and increasing the risk of ripping the condom, for example … there could be all sorts of other safety issues."
The Victorian president of the Australian Medical Association, Dr Mark Yates, says that on a personal level, he backs disclosure. "If I was having intercourse with somebody and they had HIV, I would expect them to have told me because I would need to make my own decision about what I wanted to do," he says. But he applies a different kind of rule to his role as a doctor. He says doctors are bound by both law and professional ethics to protect the confidentiality of clients. This would apply even in a case where a patient was being reckless with the health of another person, even if that other person was also the doctor's own patient. This situation can arise with a bisexual husband who does not wish to confess to his wife that he has been having illicit sex with men.
People will not be tested or tell their doctors the truth unless they believe their privacy will be respected, he says. "There was a case in NSW where the doctor did speak to the partner and he was found to have acted unprofessionally." Yates says that if there were grave concerns, a doctor would report the behaviour to the Department of Human Services.
For psychologists, the ethics are reversed: the duty to warn others of potential harm outweighs the patient's right to confidentiality, says Gordon Walker, a counselling psychologist and a spokesman for the Australian Psychological Society on gay issues.
This is because of a legal case in America in which a psychologist at a university counselling service had a patient who said he wanted to kill his girlfriend. The psychologist reported the threat to police, who interviewed the man but let him go. He subsequently killed the girl. "Her parents successfully sued the university on the basis that the girl herself should have been told; that there was a duty to warn not just anybody but the person who is under threat," Walker says. "The psychological profession follows (the principle) quite closely because we believe that's how a case would go here."
Walker is another who believes condom use is dropping because some gay men no longer see AIDS as fatal, and he speculates that situations such as Andrew's are also on the rise.
"Many of those guys who became infected in the first wave of it are now in their 50s and 60s, and men of that age are finding it harder to get it up and keep it up with condoms on … It's probably older men infecting younger ones." The HIV worker says, "Older men have safe-sex fatigue: they are sick to death of using condoms."
Lastly, there is the question of when a person's sexual behaviour crosses the murky boundary between being a public health issue and a criminal matter. Dr Robert Hall was reportedly reluctant to hand Neal's case over to police because this might affect the department's independence to manage such cases.
Australia's first-line approach has always been to tackle the issue from a health perspective for fear that criminalising HIV will stigmatise sufferers and discourage them from being open.
The question of how many reports about, and warnings to, one individual are required in order to establish that the police need to step in has yet to be resolved. Some would argue that number should not be set in concrete. Says the AMA's Dr Yates, of the overall debate, "These are major issues of civil rights and the probability of risk. I don't think you can be black and white."
Others, such as the HIV worker, believe the police should be told the first time the person breaches a Health Department order that restricts their behaviour.
This week, a NSW AIDS activist was crowing on Sydney radio about how NSW has been the only state to make up the funding shortfall when the Federal Government moved away from a matched funding program for HIV programs a few years ago.
Stevie Clayton, chief executive of the AIDS Council of NSW, said her state's gay venues were full of safe-sex campaign material and lubricant and condoms. This was not the case in Victoria, she claimed: "Obviously, I don't go into gay men's bars and sex premises in Victoria, but I'm told by my staff that go into them that they're not."
Victoria's Mike Kennedy believes "the department has absolutely dropped the ball". He says when HIV rates started to rise in the 1990s, other states put more money into the problem but Victoria did not. The Victorian AIDS Council asked for an action plan; it is still waiting. It has less money and less than half the staff of equivalent councils interstate, he says.
The Government also refused approval for an advertising campaign with the slogan "Stop the drama down under" and recently cancelled funding for a volunteer counselling service for people with HIV, AIDS and hepatitis.
A spokesman for Health Minister Bronwyn Pike said the Government had spent $25 million on preventing and treating sexually transmitted infections and that a further $2.7 million had recently been allocated to address both HIV and sexually transmitted infections.
Andrew does not think disclosure to partners should be mandatory; he thinks it would do more harm than good. He says he does not regret the way he exposed himself. "Plenty of us make well-informed and sophisticated judgements. You can say, 'I know who this person is, they're on medication, they're undetectable (in terms of viral load).' There's a risk but the odds are longer than a thousand to one on a per-occasion basis. Of course, it's cumulative; if you do it regularly your number will come up."
But he now recognises that he underestimated the effect HIV would have on him.
"The drugs made me violently ill but I'm told it improves the longer you're on them," he says. "It's a problem having your life run by pills. It's a serious chronic illness that impacts on your life.
"If I could take a magic pill and be negative again, absolutely, I would do it, but if I could go back and live my life differently to the way I have lived it, I would have to say no. I have gained a lot of life experience and learned a lot from what I did. If I did turn back the clock and do things differently, I'd be a different person today, a person I might not like. So, I am where I am."
Karen Kissane is law and justice editor.
Julia Medew is magistrates court reporter.