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Do HIV Disclosure Laws in Canada Work?

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Konrad Bongard, freelance columnist for Pardon Applications of Canada, explores current HIV disclosure laws in Canada, and suggests that more vigorous approaches to HIV education need to be adopted.

Canada is among the top 10 countries in the world for arrests and prosecutions of HIV-positive people per capita — among the most stringent in the world.  As a result, HIV experts are taking aim at Canada’s laws regarding HIV disclosure.

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At the Canadian Conference on HIV/AIDS Research in St. John’s on May 2nd, six HIV experts spoke out against a 2012 Supreme Court decision which affirmed existing laws against non-disclosure that date back to the Supreme Court’s 1998 R. v. Cuerrier decision.  The 2012 decision clarified an earlier ruling, which stated that HIV-positive persons who engaged in intercourse that posed a “significant risk” of transmission without disclosing their HIV status could face criminal charges. In the 2012 ruling, “significant risk” sexual behaviour was defined to potentially encompass any act of intercourse in which 1) a condom is not used, and 2) the virus has a regular, as opposed to nonexistent or low, viral load.

The criticism leveled at the 2012 Supreme Court decision by the six researchers, who included Dr. Mark Tyndall, is that the conditions established by the Supreme Court for legal non-disclosure do not reflect a systematic understanding of the likelihood of HIV transmission.  Because of this, there have been a number of cases in Canada where, according to Dr. Tyndall, individuals have faced serious legal repercussions when they stood “no realistic possibility of transmitting HIV.”

Do current Canadians laws on HIV disclosure, and the definition of “significant risk” that exists, make sense?

The likelihood of transmitting HIV in an unprotected act of penile-vaginal intercourse are approximately 1:1000, and 75% of the over 150 individuals charged under disclosure laws in Canada have been heterosexual. Most of them have received jail time, even though many of those convicted did not actually cause HIV transmission.

The law has also been broadly misapplied, to the point where — in a reflection of judicial ignorance — HIV-positive prisoners have been charged for spitting on their correctional officers…an act which poses virtually no threat of HIV transmission.

Canadian courts have also been lax in demanding phylogenetic testing to verify whether, in cases where an HIV-positive person is charged, they actually have the same strain of HIV as the person they supposedly infected.  Whether one agrees or disagrees with the idea of illegalizing HIV non-disclosure, it is clear that the concept of “significant risk” which exists in Canada is overstated.  Equally disturbing is the way in which prejudice appears to be a factor in terms of who is charged with HIV non-disclosure.

As Sarah Schulman points out in Slate Magazine, 52 per cent of heterosexual men charged with HIV non-disclosure have been black, whereas they make up only 6 per cent of HIV-positive men in Canada. (This is perhaps not surprising, when one considers that coverage of domestic HIV cases in Canada have long been characterized by hysterical xenophobia). In addition, many of the charges in Canada have been laid in cases of domestic disputes — part of what Schulman refers to as Canada’s “denunciated-based” culture of enforcement — where one party will end a relationship then charge their former partner for the first time met.

Persons charged with murder as a consequence of non-disclosure of their HIV status are also faced with gratuitously harsh legal sanctions: unlike a drunken driver whose passenger dies in an accident, HIV-positive persons who do not disclose their status are charged with ‘murder’, not ‘manslaughter’, when someone dies as a consequence of their non-disclosure.

Beyond these concerns, perhaps the single most important question surrounding HIV non-disclosure laws in Canada is: do they work?

“Whether one agrees or disagrees with the idea of illegalizing HIV non-disclosure, it is clear that the concept of “significant risk” which exists in Canada is overstated.”

While there is not enough data to put forth a conclusive answer to this question, there is some cause for skepticism. Since the precedential establishment of laws against HIV non-disclosure in 1998, rates of HIV transmission in Canada have continued to rise, while non-legal approaches such as the Treatment as Prevention strategy for HIV management appear to be partly the cause of consistently declining HIV transmission rates in that province.  Moreover, organizations such as the Canadian HIV/AIDS Legal Network have expressed concern that legalization has a number of negative effects on combating HIV transmission, including that it discourages people from getting tested on account of the risk of legal prosecution, damages patient-doctor relationships because of the possibility of doctors being subpoenaed, and inculcates the false mentality that HIV risk prevention is entirely the responsibility of HIV-positive persons.

“What the problem of wrongful enforcement in Canada suggests is that more vigorous approaches to HIV education need to be adopted.”

Whether laws should exist against non-disclosure of HIV status is a complex matter.  As time passes, the data will hopefully be available to assess more thoroughly.  But if legal sanctions are to be enforced in the future, they should be evidence-based, and should define the concept of “significant risk” in terms of legitimately high-risk sexual behaviours, not hearsay or urban legends.

But legal enforcement, if it continues, will not be enough. What the problem of wrongful enforcement in Canada suggests is that more vigorous approaches to HIV education need to be adopted.

Judged by our track record, our high court judges need this education as every bit as much as our schoolchildren.

Konrad Bongard is a freelance columnist for Pardon Applications of Canada, the nationwide processing firm for Canadian Pardon (Record Suspension) & U.S. Entry Waiver applications.  The opinions expressed are that of the author and do not necessarily reflect those of Pardon Applications of Canada.