Nondisclosure of HIV status should be decriminalized, UN report says
Sex work, possession of drugs for personal use and nondisclosure of HIV should all be decriminalized worldwide, according to a report released Monday by the Global Commission on HIV and the Law.
The commission, led by the United Nations Development Program, was set up in June 2010 to make recommendations on how laws can be changed and used to protect the human rights of people living with HIV, and to help fight the global HIV epidemic.
There were 14 commissioners, including Canada’s Stephen Lewis, involved in putting together the final report, which made more than 80 recommendations based on extensive research and first-hand accounts from more than 1,000 people in 140 countries.
Lewis said the Supreme Court of Canada’s ruling last year to allow Vancouver’s supervised injection site to stay open shows a commitment to harm reduction, as the report recommended.
“But on the criminalization of HIV transmission and nondisclosure front, it’s clear we’re going in the opposite direction, we may even become the jurisdiction that’s most strongly criminalized,” said Lewis, former UN special envoy for HIV/AIDS in Africa.
Some of the recommendations are in line with Canadian policies and laws, but many aren’t, said Lewis, a longtime critic of the Conservative government.
“The recommendations produced could inform the legal structure and the law of the country to help in fighting the HIV pandemic,” Lewis said. “One would hope that the country would sit down and talk, but, instead, this government will (likely) want to dismiss it out of hand.”
To date, more than 130 out of more than 65,000 people living with HIV in Canada have been charged for not disclosing their status. This number is second only to the United States, which has more than 1.2 million people living with HIV. If convicted, an HIV-positive person can face a lifetime in prison and be registered as a sexual offender.
Whether Canada’s going to change the criminal law, which states that nondisclosure of HIV resulting in a “significant risk” of bodily harm can be considered aggravated sexual assault, depends on a Supreme Court of Canada decision that’s expected by fall.
In February, the court heard the cases of two people living with HIV who failed to disclose their HIV status to their sexual partners. They were convicted by the Manitoba and Quebec provincial courts, but later had several counts of their convictions overturned by the provincial appeal courts. The Crown is now challenging these decisions in Canada’s highest court.
If the court rules in favour of the Crown, then it could mean that anybody living with HIV who fails to disclose their HIV-status can be convicted, even if there is no significant risk of transmission.
This would contradict Monday’s report, which states that “countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law,” but would require a high standard of proof and evidence.
“It’s a witch-hunt against people living with HIV,” said Richard Elliott, executive director at the Canadian HIV/AIDS Legal Network. “The overly broad use of the criminal law in Canada fuels the stigma and misinformation, and makes it harder, not easier, to disclose.”