New responses needed on HIV non-disclosure
But not necessarily new law, study says
What it takes for someone who doesn’t disclose their HIV status to be charged with a criminal offence needs to catch up to what science now knows about transmission, says a federal government study published Friday to mark World AIDS Day.
But whether that ends up being the case in Canada will be largely up to the provinces, despite the federal government’s desire to reduce what it and many advocates call the over-criminalization of HIV non-disclosure.
The Justice Department study pulled together scientific evidence and the current prevalence of HIV in Canada and treatment, and stacked it up against the way the criminal justice system currently handles cases of people who don’t disclose their HIV status prior to engaging in sexual activity.
While there’s no law specifically related to it in the Criminal Code, non-disclosure can lead to assault or sexual assault charges, because it’s been found to invalidate a partner’s consent – current wisdom suggests that if they knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.
Current science, however, suggests the risk of transmission is basically negligible if those living with HIV are being treated or taking appropriate precautions, the study concluded.
“It can, therefore, no longer be assumed that a person living with HIV in Canada is at risk of transmitting it.”
But the law is not being applied consistently in that regard throughout the country, and the way it is being used needs to take into account a range of factors, including the scientific risks
of transmission and degree of blameworthiness.
For example, the study noted, not everyone has equal access to HIV treatment or other services to help them manage the risks.
While the study’s publica-
tion coincidence with World AIDS Day, it also follows a landmark apology in the House of Commons this week for past state-sanctioned discrimination against the LGBTQ community in Canada.
The milestone saw many ad-
vocates raise concerns about the current regime of criminalization the non-disclosure of HIV, noting it had been a year since Justice Minister Jody Wilson-raybould had promised to look into it and consider providing better guidance to prosecutors.