Is Canada fuelling HIV-stigma?
Why criminalizing HIV-exposure discourages disclosure and does little to protect the public
Last week, Edmonton police took the unprecedented step of issuing a “wanted” notice with the name and photograph of a teenage girl who they alleged is HIV-positive and had unprotected sex with two men without disclosing her status. Two days after issuing the notice, and following tips from the public, police arrested her. Denied bail, she remains in custody facing at least two charges of aggravated sexual assault. Her identity and the allegations made are forever in the public domain, despite the basic principle (as outlined in the Youth Criminal Justice Act) that such information should be protected in the case of young people accused of crimes.
This sensational case has further cemented Canada’s status as a world leader in resorting to prosecutions for alleged HIV exposure, with approximately 130 such cases to date. But the police action and this prosecution have done nothing to truly protect public health. Like others before it, this sad case invites consideration of the bigger societal questions at stake – and whether the criminal-justice system is really the best way to deal with the public-health challenge of HIV in Canada.
There is no HIV-specific criminal law in Canada, but the Supreme Court ruled in 1998 that individuals must disclose their HIV status to sexual partners before engaging in activities that pose a “significant risk,” and that, if they don’t, they may face aggravated-assault charges. Ever since this ruling, the legal envelope has continually been pushed, often by the kind of exaggerated sense of HIV risk evident in the Edmonton case – to the point that people living with HIV have faced some of the most serious charges in the Criminal Code, even in cases where there is no significant risk of transmission. Nor has the law been applied fairly or consistently; courts have reached wildly varying conclusions about how to apply what is supposed to be the same law across the country.
But let’s take a step back. First, it is difficult to use the law to draw reasonable, enforceable lines between criminal and non-criminal sexual behaviours. Most people would agree that a person who maliciously transmits HIV should be criminally liable. At the other end of the spectrum, however, how could prosecution be justified against someone who is unaware that he or she has HIV? The difficulty comes in dealing with many of the circumstances between these extremes – precisely where many real-life sexual encounters fall.
There is also a very real concern about using the criminal justice system – a system based on after-the-fact retribution, not on prevention – in dealing with an issue of public health.
If the threat of criminal charges caused individuals (who would not have otherwise revealed their status to prospective sexual partners) to disclose their status and discuss preventive measures, then prosecutions might arguably be beneficial. But there is no evidence to suggest the threat of criminal charges has this effect. In fact, the proliferation of criminal cases contributes to the stigma surrounding HIV, making it more difficult for people to openly discuss HIV, get tested, and take appropriate precautions.
Meanwhile, according to the Public Health Agency of Canada, more than 65,000 Canadians are currently living with HIV, and more than one-quarter of them do not know it – making it all the more important to encourage, rather than discourage, testing and disclosure. Between 2,300 and 4,300 people are newly diagnosed with HIV each year. Treatment has improved dramatically in recent years, but there is no cure. Yet criminal charges against an individual homeless teenager, and attendant media coverage feeding a characterization of people with HIV as a “public danger,” eclipse any serious attention to the broader factors that fuel the epidemic, such as poverty, violence, addiction, stigma, discrimination, and lack of information and services, among others.
As there is little reason to think that criminal prosecutions play any significant role in protecting public health, prosecutions need to be restricted to the rare and extreme cases where retribution is appropriate. In all cases, the broader public interest demands that we also consider whether the use of the law will do more harm than good overall, including when it comes to efforts to prevent the spread of HIV.
As cases come before them, courts have the opportunity to clarify this area of law. For one thing, the Supreme Court of Canada needs to confirm clearly what it merely suggested more than a decade ago: There is no legal obligation to disclose one’s HIV-positive status when practicing safe sex, because the risk of transmission is not “significant” for the purposes of the criminal law. The use of condoms dramatically reduces the risk of transmitting HIV; it is counter-productive and unwarranted to prosecute people who are doing exactly what they should be doing to prevent the spread of infection. Similarly, the law has to evolve as science evolves: We now know that successful treatment with AIDS drugs can reduce a person’s “viral load” so significantly that it is considered “undetectable,” and there is a correspondingly dramatic reduction in the risk of transmitting HIV.
More broadly, guidelines for prosecutors are needed – in every province – so that the application (or lack thereof) of criminal law in cases of HIV non-disclosure is clear, consistent, and considers both individual and public interests.
Whatever the outcome of this latest tragedy unfolding in Edmonton, the issue of prosecuting people for not disclosing their HIV status needs rational, careful consideration. The best way to prevent HIV is to treat the virus as an issue of public health and ask people to take responsibility for their own bodies – not to resort to enforcing a criminal law that cannot possibly reflect the complexities of human sexuality.