HIV law, prosecution out of step with science
The announcement was longawaited, carefully timed and ultimately disappointing.
Last week, on World AIDS Day, the federal and Ontario governments each took steps to reduce the unjust criminalization of HIV. It’s an area where Canadian legal practice is out of step with international norms and scientific evidence.
Canadians who test HIV-positive are legally required to disclose this fact to an intimate partner before sex. Failure to do so can lead to charges of aggravated sexual assault, carrying a stiff prison sentence and lifelong registry as a sex offender — regardless of whether the virus is actually transmitted.
Naturally, one hopes an intimate partner would share this information. But the criminal law is a blunt instrument with which to enforce honesty in a relationship. And not all sex happens in a relationship. People may not disclose their status up front, fearing rejection or abuse. More to the point, they may have taken other, highly effective steps to reduce the risk of transmission to virtually nil.
Acknowledging this reality, on
Dec. 1, the Ontario Attorney General and Minister of Health jointly announced crown prosecutors will no longer pursue cases of nondisclosure where an individual’s viral load has been suppressed for six months. With viral suppression through antiretroviral therapies (ART), there is overwhelming scientific consensus the risk of transmission is negligible.
Ontario’ announcement stops well short of what could be done.
More than 70 leading HIV physicians and researchers in Canada published a consensus paper in 2014 quantifying risks of transmission. They conclude: “When used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV.”
They also note the risk of transmission from oral sex — without condoms or ART — ranges from negligible to nil.
No one is suggesting safer-sex practices be abandoned. Risk increases with exposure. But it does mean we should stop locking up HIV positive individuals who aren’t realistically putting anyone at risk.
Advocacy organizations have long called for prosecutorial guidelines to limit criminal prosecutions to extremely rare cases of actual, intentional transmission, consistent with the recommendations of UN agencies and HIV science.
Canada took a first step toward evidence-based prosecution in 2012, when a Supreme Court ruling clarified disclosure is not essential to consent in cases where a condom is used and the viral load is undetectable. Even after the ruling, Canada remained an outlier on HIV disclosure, with one of the highest rates of prosecution in the world.
New federal recommendations, also released on World AIDS Day, at last signal a positive change of direction. The Justice Canada report, Criminal Justice System’s Response to Non Disclosure of HIV, affirms HIV is foremost a public health issue. It concludes criminal law generally should not apply to people with HIV who limit their activity to oral sex, use condoms, or manage the condition with ART.
In an email Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, commented: “The Ontario Attorney General should follow these recommendations from Justice Canada and refrain from criminal prosecutions in these circumstances.”
Focusing on viral loads alone, he added, doesn’t improve justice for marginalized people facing systemic barriers to accessing HIV treatment, including Indigenous Canadians.
In Canada, Indigenous people are disproportionately affected by HIV, with an estimated new infection rate 2.7 times higher than non-Indigenous Canadians. Limiting criminalization will help address“an already documented impact of criminalization on Indigenous people,” Elliott stated, “and women in particular.”