Problems With HIV Disclosure

The Criminalization of HIV Non-Disclosure

The criminalization of HIV non-disclosure has always been a complex health and social issue full of controversy, challenges, and unsatisfactory claims, from both opponents and supporters of the notion. Even in the 21 century, the topic of HIV disclosure has continuously maintained its position as one of the most heated debates regarding moral and legal practices. This subject matter is particularly delicate due to the fact that there are so many different factors to take into consideration from any individual involved, as well as the limitless ways in which any number of people (such as judges, lawyers, jury members) could differently interpret the same scenario. I believe that although HIV non-disclosure should be subject to legal consequences, the magnitude of any punishment should be directly related to the realistic levels of risk involved, personal intentions, and agreements on sex regarding the accused individual’s actions, as well as any affected or unaffected participant(s). Having said this, I currently think that our laws towards HIV non-disclosure are overly harsh in comparison to the damage caused, exaggerate the degree to which HIV transmission is likely (possibly due to malformed beliefs or understanding of how HIV is transmitted), counter beneficial towards the progress of eradicating the HIV virus worldwide, and have maintained a precedent that is far too open for interpretation. Therefore, I will discuss this topic while expressing my personal opinions, overlooking previous court cases in Canada and other countries related to HIV, and citing legal support groups for individuals living with HIV.

To begin with, in 2012 the Supreme Court of Canada ruled that people living with HIV have the possibility of being imprisoned for having sex with a condom or low viral load if they have not disclosed to their partners that they are HIV-positive before having sex. In other words, people living with HIV have the legal responsibility of disclosing their status if sex poses a “realistic possibility of HIV transmission” ¹. The court continued by stating that a realistic possibility of transmission is negated when the accused person maintains both a low viral load and condom use during sex, otherwise canadians would be at risk of prosecution for aggravated assault, despite whether individuals had intentions of transmitting HIV or if any transmissions actually took place. Unsatisfied with the Supreme Court of Canada’s decision to limit legal resources to those working against unjust prosecutions, six canadian HIV scientists and clinicians published the canadian consensus statement on HIV and its transmission in context of the criminal law. One of the most important statements described in the canadian publishing claims that “both vaginal and anal sex with a condom pose a negligible possibility of transmission”, despite whether or not the HIV individual has a low or high viral load. Furthermore, when used correctly and without any tears, condoms are 100% effective at preventing the transmission of HIV. If this claim were to be true, than the Supreme Court of Canada’s ruling of what determining factor would declare individuals a realistic threat to HIV transmission (which is currently based on high or low viral loads) would be completely invalid. Lastly, in 2008 Swiss HIV experts released a statement which concluded that HIV positive individuals who do not suffer from any other STI and adhere to effective antiretroviral treatment do not transmit HIV sexually. This undoubtedly brings up the question regarding what stance the Supreme Court of Canada would take on the possibilities of HIV transmission by an individual taking effective antiretroviral treatment, a decision which is currently dangerous, uncertain, and greatly influential.

In addition, a legal support group for people dealing with HIV, Aids Action Now, is a campaign in Canada against the criminalization of HIV non-disclosure. Explaining the faults produced by the Supreme Court of Canada, such as the many people who have faced lengthy jail terms when no HIV transmission even occurred, Aids Action Now reiterates why criminalizing HIV non-disclosure is a serious problem ². For starters, there is the huge legal question of what actually constitutes a “significant risk” of HIV transmission, since Canadian courts have yet to define such a term. This leaves an unjust expectation for people living with HIV who maintain a lack of clarity, as well as the police, prosecutors, and courts who uphold these regulations (and should therefore completely nullify their judgment’s validation). For example, many Canadians have been charged and convicted of HIV transmission even when their risk of transmission was minimal to non-existent, as well as situations where people have used condoms or only had oral sex. Furthermore, continuing the use of criminal law makes it a lot more difficult to provide health care and support services to people living with and at risk to HIV. Therefore, if the government’s target is to prevent the transmission of HIV, then it makes immeasurably more sense to commit to proven public health approaches, instead of enforcing the criminal law with a blind eye. In addition, it has been found that imprisoning people living with HIV may actually exasperate the problem of HIV transmissions, due to the fact that prisons are environments in which high-risk behaviours are common and prevention measures are limited (which has the potential of affecting communities both inside and outside of prison) ³. All these different possible scenarios with regards to the criminalization of HIV non-disclosure may create a fear that could deter people from being tested, making the goal of preventing all transmissions of HIV a distant reality.

Overall, I believe that Supreme Court of Canada or any other eligible candidates should set forth prosecutorial guidelines to help ensure individuals are not charged when they do not pose a significant risk of HIV transmission. This could help ensure that criminal complaints related to non-disclosure against Canadians are processed in a fair manner without any discrimination. Lastly, doing so would ensure that criminal cases are kept informed, relevant, and up to date with scientific research on HIV transmission risks. In conclusion, although HIV non-disclosure should be subject to legal consequences, the magnitude of any punishment should be directly related to the realistic levels of risk involved, personal intentions, and agreements on sex regarding the actions taken by the party’s involved.

References In Order (APA Style)

1. Kazatchkine, C., Bernard, E., & Eba, P. (2015). Ending overly broad HIV criminalization: Canadian scientists and clinicians stand for justice. Journal of the International Aids Society. Retrieved March 2, 2016, from http://www.jiasociety.org/index.php/jias/article/view/20126/pdf_1
2. AIDS ACTION NOW. HIV Criminalization. Retrieved March 2, 2016, from http://www.aidsactionnow.org/?page_id=49
3. Catie. HIV in Canada: A primer for service providers. (2014, March 28). Retrieved March 2, 2016, from http://www.catie.ca/en/hiv-canada/4/4-1/4-1-2