HIV: Criminal law not the right approach
In 1998, the Supreme Court of Canada laid down the law concerning when HIV-positive people are required to inform their partners of their HIV status.
Specifically, the court held that if sex results in "significant risk of bodily harm" - that is, significant risk of HIV transmission - then the positive person must disclose his or her status.
That might sound clear enough, but in fact the law has been mired in uncertainty ever since. It has never been clear, for example, exactly what activities qualify as posing a significant risk of HIV transmission, and this has led to inconsistent application of the law by police, prosecutors and lower courts.
Indeed, since that judgment was delivered, more than 100 HIV-positive people across Canada - at least 14 people in B.C. - have been convicted of a variety of offences, even when, according to the science, their activities did not pose a significant risk of HIV transmission. In recognition of this, the Supreme Court has decided to clarify the law, and will hear two cases on this matter Wednesday.
Crown prosecutors intend to argue that the criminal law should require HIV-positive people to inform their partners of their status regardless of the risk of HIV transmission, while the defendants, along with a coalition of interveners, plan to argue that the criminal law should only require disclosure where, according to the best medical and scientific information, there exists an actual risk of harm.
Viewed more broadly, this case really concerns whether the criminal law is the best method to control the spread of HIV. For myriad reasons, that question must be answered in the negative. Consider what would happen if the Crown's position were endorsed by the court: One might think the spread of HIV would be curtailed if every HIV-positive person were required to reveal his or her HIV-status before engaging in sex, Yet since not knowing one's HIV status probably insulates people from the criminal law, the Crown's position, if adopted, would likely deter people from getting tested.
This would obviously be bad for people who are HIV-positive, since they would not get the treatment they need. But it could also contribute to the spread of the disease since, as researchers at B.C.'s Centre for Excellence in HIV/AIDS have demonstrated, HIV-positive people who receive appropriate treatment are much less infectious than those who are untreated.
The Crown's position could therefore have the unintended effect of increasing, rather than decreasing, HIV transmission. This reveals the poverty of the criminal-law-first approach.
In contrast, by treating HIV-trans-mission as a public health matter, we stand a real chance of reducing infection. Although public health laws vary from province to province, they generally authorize officials to implement various methods to control individuals' behaviours. For example, a "graduated" response would permit authorities to issue orders of increasing severity, from ones mandating counselling and treatment, to ones prohibiting certain behaviours, to apprehension and detention.
The public health approach seeks to control behaviour before it becomes problematic - just the opposite of the criminal law approach, which waits until the damage is done and then steps in and punishes the offender. Moreover, the public health approach still allows for the use of the criminal law - but only as a last resort, when nothing else has worked.
Of course, it's not up to the Supreme Court to legislate such policy matters. But the court could help us to control the epidemic by rejecting the Crown's criminal-law-first approach of requiring all HIV-positive people to reveal they have the disease. In addition, as the Canadian HIV/AIDS Legal Net-work has advocated, attorneys-general across the country could follow suit by agreeing to use the criminal law only as a last resort.
That would send the message that HIV - rather than HIV-positive people - is the real enemy that must be eradicated.