The new realities of HIV
The diagnosis of HIV was once a sure-fire death sentence, but that is no longer true.
Treatment with antiretrovirals has progressed to the point that those infected can die of "old age," routine causes that typically kill Canadians late in life. Most Canadians, however, continue to regard HIV as inevitably fatal.
The lack of public education and the lingering stigma attached to HIV complicate efforts by public health officials to encourage testing to stem its spread. They also affect the way HIV-infected people are treated by the courts.
When HIV was a death warrant, sex with an infected person carried high risk. Consequently, those who did not inform their sex partners of their status could be, and were, found guilty of criminal assault. But medical advances have thrown the concept of criminality into question. Good antiretroviral treatments don't just prolong life, but can send HIV into remission. That means the chances of passing on the virus during sex can be cut to negligible.
Good public health and basic human respect compel individuals to inform partners they are HIV-positive. Then the partner can decide whether the sex is worth any risk implied. In 1998, the Supreme Court of Canada weighed in on this issue in the Cuerrier case, upholding convictions for sexual assault causing bodily harm against a man who deceived his partners about his status. The court ruled that consent to sex was rendered void because there was significant risk of serious bodily harm to the partners.
But that was when HIV was always eventually fatal. Canada continues to prosecute HIV-positive individuals who do not inform their partners of their status. Public health officials, noting that hard line is no longer supported by the facts, want to halt routine prosecutions.
The Supreme Court, whose decision turned on the presence of significant risk of bodily harm, was divided about how to define significant risk. That was then. Today, physicians can show antiretroviral treatment can render the HIV "viral load" to undetectable levels in blood and other body fluids. That essentially all but eliminates risk of transmission: An individual with HIV and on antiretrovirals, experts say, has a one in 31,250 chance of passing on the virus during sex. That's more sex than almost anyone could manage in their sexual lives.
Yet convictions of aggravated sexual assault continue to be rendered in the belief that a diagnosis alone meets the test of significant risk.
HIV, even though it does not necessarily kill now, is a disease that changes one's life and is expensive to manage at an estimated $1 million over a person's lifetime. The reach and impact of this virus is why public health efforts to contain its spread are critical.
But conviction for not informing a sex partner of one's status must meet the logical test established in the Cuerrier case -- whether that person exposed another to "significant risk of serious bodily harm."
The Manitoba Court of Appeal last year recognized this fact. In overturning four convictions of aggravated sexual assault against Clato Mabior, Justice Freda Steel wrote that although he didn't tell his partners he was HIV-positive, they were not exposed to any real risk of infection. The court relied upon the medical evidence that showed his viral load was so low as to be undetectable due to antiretrovirals. (Mabior's convictions on two other counts were upheld by the Appeal Court because he had sex with those victims when his viral load was elevated.)
The Supreme Court is expected to rule on the Mabior case early next year. Manitoba's prosecutions branch argues the Appeal Court misread the issue of relative risk - the type of sex and the circumstances under which it is engaged can affect risk. The law is evolving, but it has to catch up with science. Police and prosecutors cannot simply assume an HIV diagnosis makes a person an abiding risk.
The actions of police and courts heavily influence social attitudes. Prosecutions should not be routine, but based on the facts of individual cases. The public needs to be better educated about HIV's new realities. Until the day when a vaccine is proven, the chances of checking HIV's spread will rest on good public understanding.