Stop jailing HIV-positive Canadians for not telling sex partners

Canadians living with HIV should no longer face a possible prison sentence for failing to disclosure their infection to sexual partners, says an acclaimed Canadian doctor who helped revolutionize the treatment of HIV worldwide.

Drug cocktails known as HAART, or highly active antiretroviral therapy, can drive the viral load of people living with HIV to undetectable levels — making their risk of transmitting the virus to partners extraordinarily low, Dr. Julio Montaner, director of the B.C. Centre for Excellence in HIV/AIDS and colleagues M-J Molloy and Thomas Kerr write in this week's edition of the Canadian Medical Association Journal.

Despite this, Canada has witnessed "an escalation in the number of people prosecuted for allegedly exposing sexual partners to the virus," the team writes. This country "now ranks among the world leaders in the rate of such prosecutions."

In an interview, Montaner said that, for appropriately treated patients, the likelihood of transmitting HIV "approaches zero." A study published this year found early treatment with HAART reduced by 96 per cent the likelihood that the infected person would pass the virus to a partner.

He said patients with HIV, unlike those with other sexually transmitted infections, are being singled out because of stigma and fear.

Cervical cancer, for example, is frequently caused by human papilloma virus, or HPV infections, Montaner said. "Do we place a burden on males infected with HPV to have to disclose every time that they have a sexual encounter that they have HPV? We don't — and that's only one example," he said.

"To put the burden on the person infected with HIV that they have to disclose when they may be on treatment or using a condom, or doing both, is really not appropriate."

"Let me be clear - I think that people who behave irresponsibly, they need to be judged accordingly and there are laws to address those issues. If you mislead somebody, if you misrepresent your status . . . But to have a policy that selectively targets HIV is discriminatory and discourages people from seeking out testing and treatment," Montaner said.

It was once believed that HIV, if transmitted, meant a sure and relatively rapid death, Montaner said. Today, HAART has transformed HIV/AIDS into a chronic condition. Writing in the CMAJ, he and his co-authors say that long-term use of HAART drives HIV into "full, long term remission."

"We can't have a discourse that, on one hand, says things are different now - we can identify HIV, we can treat it, you can have a near normal life - and, on the other hand, says if you (do not disclose) to another person we are ready to put you in jail," Montaner said.

The call by the BC experts for an end to the "criminalization of HIV" comes on the 30th anniversary year of the first documented cases of HIV and just as Canada's highest court, the Supreme Court of Canada, prepares to hear two high-profile cases in February, one from Manitoba, the other Quebec, involving those living with the human immunodeficiency virus, or HIV.

In the first, Clato Mabior, an HIV-positive man and Sudanese immigrant in Winnipeg, was sentenced in 2008 to 14 years in prison after he was convicted of multiple counts of aggravated sexual assault for engaging in unprotected sex with six people - including a 12-year-old girl - and not disclosing his status.

An appeal court found that the original trial judge erred when he ruled Mabior was a "significant risk" even though he had an undetectable viral load and used condoms during intercourse on some of the occasions.

In the Quebec case, a woman known as D.C. had unprotected sex with her former spouse without informing him of her HIV status. She was convicted of sexual assault and aggravated assault. The Quebec appeal court acquitted her on the ground that, since her viral load had been undetectable during the period covered by the charges and the risk of transmission had been low, the fact that she had not disclosed her status had not had the effect of exposing her former spouse to "a significant risk of serious harm."

Writing in the CMAJ, the BC researchers say that high-profile cases may dissuade people from getting tested. "In some cases, information shared in counselling sessions between health care providers and people living with HIV/AIDS has been subpoenaed and entered into evidence in criminal trials," they write.

"Prosecutions put the life of people living with HIV/AIDS at risk, increase the risk of HIV transmission and health care costs, and ultimately place the public at higher risk," the authors say. "It is time to embrace the scientific evidence, recognize the ability of HAART to virtually eliminate the transmission of HIV, and do away with criminal prosecutions for HIV nondisclosure."

Bill Flanagan, dean of the law school at Queen's University in Kingston, Ontario, said the argument makes sense.

Canadian judges have begun to recognize that if someone is on HAART and their HIV levels are sufficiently suppressed, "the risk of transmission is very low" and criminal prosecution isn't warranted, even in the event that there was no disclosure of their HIV status, Flanagan said.

"To me the greater risk is unwarranted criminal prosecution that sends a strong message to people (that) the last thing you want to do in the world is seek HIV testing and counselling, because if you don't know that you're infected well then presumably that would always be a defence."

"I just don't see the criminal law being useful in any scenario other than the most egregious case of a person knowing that they're infected, not seeking treatment and they knowingly place others at risk. There have been criminal prosecutions of those cases and in my view those are warranted."

But that's a very small minority, he said, "and hopefully will become even smaller as people become better aware of the benefits of treatment."

Amir Attaran, a professor of law and medicine at the University of Ottawa, cautioned that while HAART has revolutionized the treatment of HIV, treatment can fail. "There is no such thing as an antiretroviral regimen with 100 per cent enduring clinical effectiveness. It doesn't exist," said Attaran, Canada research chair in law, population health and global development policy.

"I think that what they are proposing is very good food for thought," Attaran said. But, "I think they have unfortunately created a bit of a straw man."

People haven't been prosecuted for nondisclosure, he said. "They've been prosecuted for assault, and if it were a different virus, or if it were a bacterium and it were syphilis it would be the same thing. There is no HIV exceptionalism that I see here."

In his view, "nondisclosure is not the issue. Fraudulent nondisclosure is the issue."

An estimated 75,000 Canadians are living with the virus; 3,300 people are infected each year. About 25 per cent of HIV-positive Canadians are unaware that they are infected.