Did you know that three-quarters of people in Canada believe people who don’t disclose their status to sexual partners should be imprisoned? Or that only 29% have ever gone for an HIV test? Or that only one in two describe condoms as a “very effective” means of HIV prevention?

These are some of the more interesting findings of a just released draft report on Canadian Attitudes, Behaviour and Knowledge Related to HIV/AIDS.  It comes from the CIHR Social Research Centre in HIV Prevention (SRC), commissioned by CANFAR.

The report is a mixture of encouraging news about how far we’ve come, particularly in the public’s knowledge of HIV and acceptance of people living with it, and some pointers to where we’ve fallen short and need to do more.

SRC invited me to be part of the panel at last week’s CAHR conference in Montreal discussing the newly-unveiled report and its implications for prevention, research and policy development. A high-powered panel, a topic which fascinates me, particularly its social media implications, plus a chance to visit a city I’m quite fond all beckoned all in one! (And, as it happened, it meant an opportunity to spend time with PositiveLite.com writers Ken Monteith and Denise Becker.)

The report  contains a huge amount of data. Much of it is both fascinating  and full of implications. My approach on the panel was to concentrate on just two pieces  - HIV testing and the role of social media in HIV prevention, while others commented on the report as a whole, or those pieces which reflected on their own work.

First, here are the some of the report highlights:

•  People living in Canada continue to report relatively high levels of knowledge about HIV and AIDS. In 2011, 93% of Canadians 16 years of age or older describe themselves as at least moderately knowledgeable about HIV and AIDS, with no significant change in self-reported knowledge evident since 2003.

 •  Canadians are significantly more likely in 2011 (89%) than they were in 2006 (80%) to believe that HIV and AIDS treatments are effective in helping people with HIV lead normal lives.

 •  There is almost universal recognition that HIV can be transmitted by sharing needles (99%) or having sexual intercourse without a condom (99%).

 •  A substantial majority (82%) recognize that HIV can be transmitted from an HIV-positive mother to her baby during childbirth.

 •   Only a minority (36%) recognize that the virus can be passed from an HIV-positive mother to her baby when breast feeding.

 •  Greater societal tolerance for people living with HIV is evident since 2006, with Canadians more inclined to report comfort with working in an office with someone with HIV, shopping at a store where an owner has HIV, and having a child attend school where another student has HIV'

 •  Half the population (47%) has never been tested for HIV. When key reasons for testing, including blood donation, insurance, immigration and research are removed as reasons for testing, two-thirds (65%) of Canadians have not been tested for HIV. No significant change in the prevalence of testing for HIV is apparent in Canada since 2003.

 •  Canadians strongly agree (91%) that people living with HIV should have the same rights as they themselves do, including the same right to employment, health care and housing.

 •  Only a minority of Canadians agree that people living with HIV have the right be sexually active, a finding that remains unchanged since 2006. When asked if people with HIV should have the same right to be sexually active if they practice safe sex or if they inform their sexual partners about their HIV status, agreement rises substantially.

 •  Almost nine-in-ten Canadians (87%) are aware that people with HIV can be criminally prosecuted for knowingly failing to disclose their HIV status to sexual partners.

 •  Three-quarters (74%) of Canadians believe it is appropriate to imprison people with HIV who knowingly fail to disclose their status to a sexual partner, with 55% reporting that it is “definitely” appropriate.

 •  No consensus within the population emerges around the effect of criminal prosecution of people with HIV who knowingly fail to disclose their status. Fewer than half (46%) agree that such prosecution is an effective way to deter people from transmitting HIV.

 •  Almost one-quarter (22%) of Canadians report that they have ever made a donation to a charitable or not-for-profit organization that deals specifically with HIV and AIDS. Among those who have not, almost half (48%) report that they would consider making a donation to an organization involved with HIV and AIDS research, treatment or cure.

Reading these highlights, you may notice that much of it reflects a
“glass half full/glass half empty” situation. And much of the summary date needs unpacking. For example a little over half of Canadians have been tested for HIV, but much of that testing has been by third parties needing to know your status in the course of their work – insurers, those in charge of blood donations and the like. Discount these tests and we find just 29% of Canadians  have actually sought out their HIV status, perhaps only once. Is that good or is that bad?

Some might say that’s disappointingly low. Others may say that realistically, although we often say everyone is at risk of HIV infection in Canada, many - the vast majority in fact - belong to groups where infection rates are extremely low and are perhaps thus at very little risk of infection. So one could perhaps view 29% as an achievement, but one to be built on.  

To completely unpack  the data, of course, one has to look at the full technical report, which will be available on the SCR website shortly . That document provides breakdowns of data by populations at risk, which is essential , for instance to understand where testing is working well or may be deficient and needs to be ramped up.

In Montreal last week it was interesting – and this is the intention of reports like this - to see how research forms the springboard for community discussions as to where to go next.  The testing data, for instance fuelled a fulsome discussion on the relative merits of highly focussed testing aimed at high risk groups (“seek and treat”), or more universal testing, such as that we are seeing in BC where HIV testing is being normalized and included, with your consent, as part of every sexually active adult’s annual physical. Adding to the mix, and the discussion,  was the re-emergence of over-the-counter home testing  as an option to be considered, notably by panel member Michael Bartos of UNAIDS (an idea also floated recently by Ken Monteith on PositiveLite.com.)

Turning again to the report, I want to comment briefly on the area that was most disconcerting, and that was the data relating to criminalization. The numbers here should set off alarm bells, a recognition that our community advocacy to halt the rising tide of prosecutions for non-disclosure in Canada is failing badly at getting the public on side. One could argue that it is necessary only to convince the Supreme Court, and not the general public that, criminalization is rarely appropriate.  In any event, this is the picture that the report presents. 

“Almost nine-in-ten Canadians are aware that a person with HIV can be criminally charged if they do not disclose their status to their sexual partners. Three-quarters of the population take the view that it is appropriate to imprison someone who knowingly fails to disclose their status. More than half believe that it is “definitely appropriate” to imprison people with HIV who knowingly fail to disclose their HIV status to sexual partners. Despite this resolute view, there is no public consensus on the outcome of such criminal prosecution. Canadians are divided in their views as to whether prosecution of people with HIV who fail to disclose their HIV status to sexual partners is an effective means of deterring people with HIV from transmitting the disease to sexual partners or whether it increases the stigma and discrimination against people living with HIV.  . . Overall, the data suggest that there is a strong view that criminal prosecution is appropriate, but the outcomes of such prosecution are unclear and divide the population.”

Whilst the high number of criminalization proponents is discouraging, I suppose we can take comfort in the fact that, even amongst those numbers, there is lack of agreement that those convictions actually achieve anything, a blow to those who argue that criminalization positively impacts HIV prevention.

 Overall, though, while we tend to focus on what is not working as well as it should, and even where we have failed, it’s important to look at the good-news aspects of the report too. And they are considerable. As the report says  . . . 

“In 2006, Canadians expressed relatively strong levels of knowledge about HIV and AIDS and revealed improving levels of tolerance and acceptance of people living with HIV in Canada. Findings collected in 2011 suggest further improvements in societal tolerance for people living with HIV and a more widespread understanding of how HIV is transmitted. Today, very few Canadians report that they could not befriend an HIV-positive individual….. Most Canadians recognize that HIV is not transmitted through casual contact…The research findings also reveal that some, specific knowledge about the virus is widespread. Almost all understand that neither a vaccine nor a cure for HIV and AIDS is available yet. ..Further, there is a broad public understanding that progress has been made over the last several years in HIV treatment such that people living with HIV can lead more normal lives.”

And significantly “Canadians are clear that people with HIV are entitled to the same rights as all other citizens. More than nine-in-ten Canadians agree that people living with HIV should have the same rights to employment, healthcare and housing as all others. Further, there is strong agreement that people living with HIV have the same right to be sexually active as all other Canadians as long as they inform their sexual partners of their HIV status.”

It's clear we've come a long way, haven't we?

In Singapore, we have an act called the Infectious Diseases Act. This requires us, by law, to disclose to our sexual partner our medical condition if we are HIV+. I guess this is a law to protect the local populace, as much as the expatriate population who are obligated to be screened for HIV, among other infectious diseases, and are denied their stay or required to return from where they came if test results return with any cause for alarm.

Of course, this law is from the same country that has yet to repeal an old British penal code it adopted in the form of 377a, which states that “any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person, of any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

Nonetheless, fornication continued behind closed doors (or otherwise). Us homosexuals have our needs. Needs beyond what a law lecturer, during a debate to repeal the above penal code (which did not happen), described as akin to ‘shoving a straw up your nose to drink.’ This of course become conversation fodder in gay bars for quite a while. That, and how the sad said law lecturer really needed a better hairstylist, probably one who enjoyed shoving straws up nostrils.

That’s beside the point though. I’m not here to talk about politics and the local laws (yawn..), more how we, or at least I, get around it. As modern as Singapore makes itself out to be, we are very much very traditional - some say, backward - in our collective thinking. So much so, that when a local mainstream cross-dressing celebrity called Kumar went public and declared he was in fact, gay, the media collectively heaved in shock. “That camp cross-dresser, gay? No way!”

So what do we do? We keep our sex lives in closets already cramped with clothes. Not so much to hide, as to remain unseen.  I did so for a while, thinking all would be good, I knowingly only breaking one law here anyway (save, smuggling gum – which happens to be illegal here too!). This is, until I had the Infectious Diseases Act come into play (or for the matter, whenever I played) for me. As much as 377a is laughable in the context of our modern metropolis, the Infectious Diseases Act does seem to make a point. It’s the responsible, hence the right thing to do. So it should be mandated by law! I mean, what could go wrong anyway?

“Uh, before we proceed to perform already illegal sexual acts I’d like to say something.”
“What is it?”
“I have HIV! OK, now that that’s out of the way, shall we?”

Of course he won’t go running out the door, or chasing you out of it. The real-life scenario is, it remains undiscussed and both parties simply get on with it  - and each other.

Ideally, this should be the fall-back option. The law of the land does come first, after all. This makes the default route abstinence... at least from sex. You see, I can still date, and do; just that I have to bring out my delaying tactics. The age-old tradition of queens before me, reverently held in high regard, of putting out on a first date (or putting out without a date at all) had to be abandoned. I had to transform myself into a pseudo-hard-to-get-non-horny-22-year-old. Trust me when I say, for the time I kept with this, the whole celibacy thing was a real hands on job.

After a while though, the pragmatic me, who feels too young to let HIV waste the ticking hand on my youth to keep me from enjoying myself, says this is too much effort. After all, dating to most gay men almost always has to have that sex quotient. Otherwise, we might as well be, you know, straight. Noble as the intent is, I disagree with the act. I should decide for myself, that the onus for protecting my anus (and prick, but I just thought using onus and anus in the same sentence would sound funny) is on me, not the lawmakers. HIV is a disease I have lived through first hand, why would I want to wish it on others?

So how exactly do I get on with my love life now? Like I always did. This time, only safer. So the question begets, when do I reveal my status? It’s a tricky topic really, one that me and my friends have discussed to death (thankfully not literally, we have much better things to do like you know, actually doing instead of talking about it).

Some of them think that it’s better to tell someone you’re genuinely interested in dating the truth up-front or early on, not just because of the law, but more because you can see where it goes from there. If he’s not interested in being with someone positive, then you can move on before it even begins. Others think, why kill what could develop even before the seeds are sown?

Either way, there’s no definitive right or wrong, especially in sero-discordant dating. For me, I go with the latter option. I only dream that when I do broach the topic he would smile and go, ‘hey, I was meaning to tell you, I am HIV+ too, even before I met you..’ That, would be destiny’s finest play. 

Dear friends and supporters:

As you know, last week, the Supreme Court of Canada heard two key cases – R. v. Mabior and R. v. D.C. – on the issue of when people living with HIV may be criminally prosecuted for sexual assault for not disclosing their HIV-positive status. 

These cases revisit the issues raised in the Supreme Court’s original judgment in 1998 in the case of R. v. Cuerrier, which determined that a person may be convicted of aggravated (sexual) assault for not disclosing her or his HIV-positive status before engaging in conduct that poses a “significant risk of serious bodily harm.” 

The Court’s decisions in these two new cases are expected later this year, and the implications are serious for people living with HIV and for those working in the field of HIV prevention and care.

The Canadian HIV/AIDS Legal Network intervened in both cases, in partnership with numerous other organizations: the HIV/AIDS Legal Clinic of Ontario (HALCO), the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA), Positive Living Society of British Columbia (Positive Living BC), the Canadian AIDS Society (CAS), Toronto People with AIDS Foundation (PWA), the Black Coalition for AIDS Prevention (BlackCAP) and the Canadian Aboriginal AIDS Network (CAAN). 

We argued before the Court that while prosecution may be warranted in some limited circumstances (e.g., the rare case where someone maliciously transmits HIV), the criminal law should only be used at last resort and in the most blameworthy cases. 

In particular, we urged the Supreme Court to rule that, given the available scientific evidence, there is not, for purposes of criminal prosecution, a “significant risk” of HIV transmission in cases of oral sex, in any case where a condom was used for vaginal or anal sex, or when a person has a low or undetectable viral load. 

In contrast, the prosecution argued that people living with HIV should always be obliged to disclose their status, and should be convicted of aggravated sexual assault if they do not, regardless of how miniscule the risk of transmission.

There has been significant media coverage of these landmark cases.  We have been working hard to promote fair and balanced reporting on the cases and the criminalization of HIV non-disclosure issue to ensure that the Canadian public is aware of the important implications the Court’s decision will have not only for people living with HIV, but also for Canadian public health, police practice and the criminal justice system.  Please find below a selection of just some of the articles and editorials in the media this past week on this issue.

In the lead up to the Supreme Court hearing, AIDS Action Now!, the Legal Network and the HIV & AIDS Legal Clinic of Ontario co-sponsored a rally in Toronto against criminalization.  Videos from the event are available at http://www.aidsactionnow.org/ In Ottawa, the Legal Network and the Canadian AIDS Society held the premiere screening of our new documentary, Positive Women: Exposing Injustice, examining the many impacts of criminalization on women in Canada. (Stay tuned for more screenings across the country in the months ahead.) In Montreal, a flash mob was organized in front of the courthouse by groups such as PolitiQ, Radical Queer, Warning et Stella, highlighting that criminalization undermines HIV prevention. To learn more about the issue of criminalizing HIV non-disclosure, and about these two cases before the Supreme Court of Canada, please visit http://www.aidslaw.ca/stopcriminalization.

The Legal Network is the only national, community-based charitable organization in Canada working exclusively on HIV/AIDS-related policy and legal issues.  Our ability to lead legal challenges and intervene in cases such as these, to defend the rights of people living with or vulnerable to HIV, depends on the generosity of our supporters.  Please support our work by making a donation today.

Canadian HIV/AIDS Legal Network

www.aidslaw.ca

Print/Presse-écrite:

Let’s draw reasonable lines on HIV disclosure, Richard Elliott, Globe and Mail, Feb. 08, 2012

Criminalisation de l'exposition au VIH — La Cour supreme doit trancher, Stéphanie Claivaz-Loranger et Cécile Kazatchkine, Le Devoir, 8 février 2012

Mabior and D.C.: Does HIV Non-Disclosure Equal Rape? (Parts 1 & 2), Richard Elliott and Alison Symington , TheCourt.ca, February 7th, 2012

HIV disclosure a must despite advances, judges told , Linda Nguyen, Postmedia News, Vancouver Sun, Thu Feb 9 2012

La Cour suprême se penche sur l'obligation de déclarer sa séropositivité, Hugo de Grandpré, La Presse, le 09 février 2012

SCOC ponders law on disclosure of HIV/AIDS to sex partners, Linda Nguyen, Source: Postmedia News, The Vancouver Sun, Wed Feb 8 2012

VIH, consentement sexuel et Cour supreme, Brian Myles, Le Devoir, 8 février 2012

UPDATE: Supreme Court questions defence in landmark HIV case, Marcus McCann, Xtra, February 08, 2012

AIDS Action Now day of action on HIV criminalization, Frank Prendergast, Xtra, February 08, 2012

Those with HIV obliged to disclose status to sexual partners, Globe and Mail Editorial, February 7, 2012

Editorial: HIV: Criminal law not the right approach , Source: Vancouver Sun, Page: A10, Edition: Final, Vancouver Sun, Tue Feb 7 2012

Justice — La divulgation de la séropositivité devant la Cour supreme, Le Devoir, 6 février 2012

HIV-disclosure obligations under scrutiny in separate cases, The Globe and Mail, 6 February 2012

Do people with HIV have to tell their sex partners?, Canadian Press, 5 February 2012

To tell or not to tell, The Hamilton Spectator, 4 February 2012

Radio/TV:

Criminalisation du VIH à la Cour supreme, Radio-Canada, February 8 2012

Responsibilities of HIV carriers before the SCOC, CBC The Early Edition, February 8, 2012

Supreme Court to hear HIV disclosure case, CBC News, Feb 7, 2012

Protests before Supreme Court reviews HIV disclosure, CTV, Feb. 07 2012

Do people with HIV have to tell their sex partners? Supreme Court to decide, Global News, February 06, 2012

List provided by Lindsey Amèrica-Simms, Communications and Outreach Strategist | Conseillère en communication et relations communautaires

Canadian HIV/AIDS Legal Network | Le Réseau juridique canadien VIH/sida

416-595-1666 ext (poste) 236

www.aidslaw.ca | www.twitter.com/aidslaw 

On February the 8th I spoke at a rally outside the Supreme Court of Canada, while inside the court debated  the laws currently governing HIV disclosure. I joined a National call to action spearheaded out of Toronto and helped assemble three people living with HIV to talk about their own experiences trying to negotiate sex under an ill-defined law that has been inconsistently prosecuted by the courts.  Below is an excerpt from the speech that I delivered as part of the protest.

I’ve spoken out on Parliament Hill, at the Human Rights Monument, on club event fliers, and in the pages of Xtra, The Ottawa Citizen, 24 Hours, 2B, and countless other newspapers and social media sites decrying the criminalization of HIV non-disclosure. I’ve carried and marched under banners in the Ottawa AIDS Walk and Pride begging for amnesty and understanding for every gay man who chose not to wear a condom. I’ve served on Working Groups, sat in workshops, given testimonials, administered surveys, and debated strangers about the merits of a law that I know fails to prevent new HIV transmissions and in fact helps HIV flourish. I’ve dished out condoms to teenagers and senior citizens alike while trying to undo 30 years of fear based HIV campaigns and sex-negative messaging as an HIV-Prevention Worker.

I’ve been called a murderer, a sex-offender, an administer of a noxious substance, a whore, a faggot, a public health menace, a criminal, and had my dick compared to a loaded gun, because I am an HIV+ gay man advocating that sexual health is a shared responsibility and have talked openly about my own experiences around condomless sex and negotiating safer-sex and disclosure as an educator. Sex columnist Dan Savage once referred to me as an ’immoral piece of shit’ in writing…

I’ve had AIDS Service Organizations pressure other AIDS Service Organizations to not allow me to speak publicly at their events because  they’re scared about what I might say. They’ve called me a “live wire” and “unpredictable”. But I think I’m utterly predictable. Every time I get up in front of a crowd I only care about one thing, and that’s telling my truth. And right now my truth is that I am so fuckin’ tired of fighting about this issue.  

And I think that’s why a lot of us are here, at the Supreme Court. Yes  - we hope that history will be made and that we will be here to witness it. Yes - we’re gathered at the Supreme Court in the hopes that our communities will stop being criminalized. Yes, we want to see poz people stop getting demonized by the Police and the Media. Yes - we want our lovers to stop scapegoating  us when we make a poor decision together.

We’re here because we have hope, after years of arguing science over morality numerous times with our Doctors, our Families, and our Friends, that we will finally be done arguing. We’re hoping that the HIV-stigma and discrimination we encounter every day will be lessoned with a well articulated, modern, scientific perspective today in that building behind me. We want to say “we’re not criminals!” and “I told you so!” as loud as we can to our critics!

But of course, even if the Supreme Court re-defines non-disclosure laws based in science instead of fear, even then we won’t be done fighting. We’ll still have to advocate for public dollars to address our high rates of HIV in Canada. We’ll still have to advocate for our Government to fix CAMR and get generic drugs into Africa. We’ll still have to push to have comprehensive sex education in schools, and file Human Rights Claims when we're discriminated against. We’ll still have to pretend to not be hurt when a trick’s boner deflates in front of our naked bodies when we try to casually mention that we have HIV before things go “any further“. I’m still going to have to fight to pretend that it doesn’t hurt me when they say “let’s just be friends” and push me towards the door.  

But maybe I’ll be stronger to fight those battles without HALCO and a lawyer’s number taking up space on my cell phones rolodex. Maybe I’ll have more energy to be articulate and clever when I’m not busy trying to find a new way to ask “how’s life?” every week in a letter to an incarcerated friend who is awaiting trial for attempted murder simply because he wanted to have an orgasm.  And just maybe I can focus more on my own health and well-being when I’m not busy trying to get the men I sleep with to record the fact that they knew my HIV status before they agreed to sleep with me…”

An estimated 75,000 people in Canada were living with HIV at the end of 2009, according to the Centre for Infectious Disease Prevention and Control. Since the 1998 Supreme Court ruling, more than 130 people have been charged for not disclosing their HIV+ status to their sexual partners.

The fireworks could be mighty, as emotions raged between the furious accuser and the positive person trying to defend his actions. What might that meeting look like, exactly?

In this video, you’re about to find out.

Amidst the highly charged emotions of the HIV criminalization debate, “sides” are developing. One side believes that those with HIV who do not tell their sex partners about their status should go to jail. Period. But others claim that there is little public health benefit to laws against non-disclosure because they discourage people from getting tested – you can’t be prosecuted if you don’t know your status — and there are often prosecutions in which the risk of transmission is remote or even non-existent.

But taking firmly entrenched sides helps no one. We’ve simply got to get educated beyond our gut reactions to these prosecutions. We all could use more understanding about HIV criminalization laws, how they are being applied, and whether or not they are truly serving the public good. It’s also important that we understand the anger of those who feel they were put at risk and are seeking retribution.

A full list of HIV criminalization laws – and convictions globally (including for each of the states of the USA ) can be found at http://www.gnpplus.net/criminalisation/. To find multiple resources on what to do if one is at risk of prosecution, who to call for help, what the law is in every state, or get palm cards with links to resources, visit The Positive Justice Project.

But back to the video: I couldn’t help but wonder what might happen if an HIV positive man had to sit down with his accuser and explain himself. So, through the magic of some creative editing, I produced this video episode of “My Fabulous Disease” to give a voice to the opinions and feelings of both parties. You can decide if I was successful.

I used this editing technique to comic effect in the “My T-cells Could Use a Facelift” episode (the infamous video about butt padding, among other things). I’ve been looking for a good reason to do it again, and I thought this topic fit the format perfectly.

Thanks for watching, and please be well.

Mark

You can read more of Mark S.  King on his own website My Fabulous Disease 

 

This article by Edwin J Bernard first appeared in issue 210 of NAM’s HIV Treatment Update, Winter 2012. For more information on NAM and HTU, or to subscribe to HTU, go to www.aidsmap.com

“Nothing short of barbaric.” This was the comment of a BBC presenter, confronted with the number and sheer arbitrary injustice of criminal convictions of people accused of transmitting HIV or exposing other people to it. In some cases, people have been jailed for failing to disclose HIV in situations where they couldn’t possibly have transmitted it.

And yet, says Edwin J Bernard, there have been some encouraging international policy developments in the fight against the unjust persecution of people with HIV.

Worldwide, arrests, prosecutions and their associated media reports continue to have a devastating impact on the people accused of exposing or transmitting HIV, as well as adding further to the stigma of living with HIV.

Yet since HTU last covered the issue of HIV and the criminal law (HTU 199, September 2010), there have been some remarkably encouraging national and international policy developments.

"Nothing short of barbaric"

For the past 18 months, the Global Commission on HIV and the Law, led by the United Nations Development Programme (UNDP) on behalf of the Joint United Nations Programme on HIV/AIDS (UNAIDS), has been gathering evidence from all over the world about the impact of the law on HIV. The Commission has been examining issues much broader than the criminalisation of HIV non-disclosure, exposure and transmission. These include the criminalisation of sex between men, sex work and drug use; the impact of the law on women and children; and the impact of intellectual property law and trade agreements on the availability of generic antiretrovirals.

However, some of the world's leading experts on the criminalisation of HIV non-disclosure, exposure and transmission are part of the Commission's Technical Advisory Group, including the UK's Professor Matthew Weait. And the Commission's report (due soon) is expected to censure countries that continue to treat people with HIV as potential – and actual – criminals and where HIV-related stigma is trumping evidence-informed laws and policies.1

At the Commissions' High Income Countries Dialogue held in Oakland, California, in September 2011, the issue of criminal prosecutions for HIV non-disclosure, exposure or transmission was very much at the heart of the meeting. The often emotional testimony was skilfully moderated by BBC presenter Nisha Pillai, herself moved to tears by the end of the meeting, overwhelmed by the stories of legal injustices perpetrated against people with HIV.

"The Western world’s treatment of many people with HIV is nothing short of barbaric," Pillai wrote in a blog entry a few days later. "The distressing testimony I witnessed from people living in the world’s richest countries – the US, Canada, the UK, Denmark, Germany, and elsewhere in Europe – left me profoundly shocked… The reason is simple – criminalisation... In some states of America you can kill someone in a car accident and get a lighter sentence than if you fail to pass on HIV to a sexual partner. Passing on herpes or hepatitis C isn’t prosecuted, but not passing on HIV is. The injustice is staggering. Seldom in my many years as a BBC journalist, and now as an international moderator, have I felt so outraged."2

The meeting was hosted by the sole US member of the Commission, Oakland Congresswoman Barbara Lee. Congresswoman Lee recently unveiled the Repeal HIV Discrimination Act which creates financial incentives and support for states to review and reform HIV-specific laws that are not consistent with good public health or HIV science.3

The Western world's treatment of many people with HIV is nothing short of barbaric. The distressing testimony I witnessed...left me profoundly shocked. Nisha Pillai, international moderator“Laws that place an additional burden on HIV-positive individuals because of their HIV status lag far behind the medical advances and scientific discoveries in the fight against the epidemic,” said Congresswoman Lee. “Instead of progress against the disease and protection for people living with HIV/AIDS, criminalisation laws breed fear, discrimination, distrust, and hatred. Although our country has made notable advances in the global fight against HIV/AIDS, we have a long way to go. The decriminalisation of HIV/AIDS is one way we can reduce stigma in our communities, while fighting the epidemic in a rational, holistic, and truly rights-based fashion."4

Although it is unknown whether the bill will pass when introduced to the US House of Representatives, at the very least it will create awareness and debate amongst US lawmakers about the issue.

Since 2008, when they produced their policy brief on the issue,5 UNAIDS and UNDP have been actively trying to persuade governments and policymakers to repeal HIV-specific criminal laws and to limit the application of general criminal law to actual cases of intentional transmission, where a person:

• knows his or her HIV-positive status;
• acts with the intention to transmit HIV;
• and does in fact transmit it.

At the heart of this position is the need to establish a threshold for criminal liability that would serve justice in truly blameworthy cases – where the intention to harm can be clearly established – while avoiding overly broad application of the criminal law which risks jeopardising public health and human rights.

Basing legal decisions on good science

Three years before the 'Swiss statement'6 on the impact of antiretroviral therapy on infectiousness, the Netherlands' highest court decided that one act of insertive unprotected anal sex when the accused was on treatment was not significant enough to be considered a risk of serious harm. The result is that, consistent with UNAIDS' recommendations, only maliciously intentional exposure or transmission remains a criminal offence.7 The impact of the Swiss statement was not only felt in Geneva, where HIV exposure charges were dropped because the risks were considered to be purely "hypothetical",8 but also in Austria,9 Canada10 and the US military.11

In August 2011, UNAIDS convened an expert meeting in Geneva on the scientific, medical, legal and human rights aspects of the criminalisation of HIV non-disclosure, exposure and transmission. This was the first part a project funded by the Government of Norway to expand on its 2008 policy brief in order to provide more detailed guidance and inform law and policy internationally.12

Criminalisation laws breed fear, discrimination, distrust and hatred. Congresswoman Barbara LeeThe meeting presented a unique opportunity to explore the latest developments in HIV science – such as the impact of treatment on transmission risk and life expectancy. It was also a chance to provide the UNAIDS Secretariat and other stakeholders with recommendations that would promote an application of criminal law to HIV non-disclosure, exposure and transmission, if any, that serves justice, without jeopardising public health objectives and fundamental human rights. The meeting reached expert consensus on issues such as HIV-related risk and harm; clarifying criminal intent and acceptable defences; and highlighting limitations of scientific evidence in proving transmission.13

The second part of the project – a high level policy consultation – will take place in February 2012 in Oslo. It is hoped that the Oslo meeting will lead to a greater understanding of the current issues around HIV non-disclosure, exposure and transmission and assist countries to reform their HIV-related criminal laws, policies and practices.

The problem with HIV-specific laws

However, for every sign of progress – such as the February 2011 suspension of Denmark's HIV-specific criminal law14 or Guyana's rejection of a new HIV-specific criminal law in September 201115 – there have been at least as many problematic developments, such as Romania's new HIV-specific criminal statute, implemented in October 2011,16 or South Africa's opposition leader Helen Zille's recent speech calling for men who don't use condoms to be prosecuted for attempted murder.17

In addition, many jurisdictions, notably high-income countries in Australasia, western Europe and North America, continue to prosecute people living with HIV inappropriately for non-disclosure, alleged exposure and non-intentional transmission.18 Last year also saw prosecutions in Belgium19 and in the Congo20 for the first time, both using anti-poisoning laws. The vast majority do not meet criteria for “deliberate” transmission, despite the frequent use of this word in the media.

HIV-specific laws are found all over the world - notably in Africa, central Asia, eastern Europe and Latin America.21 At least 32 states of the United States also have such laws, and in the US there are arrests on an almost daily basis.22

Rather than criminalising HIV transmission, most US laws criminalise behaviour that may or may not (and in some cases definitely does not) risk HIV transmission. Some outlaw practices that are not significantly risky or harmful (for example, sharing sex toys, spitting, performing oral sex); and others criminalise non-disclosure of known HIV-positive status, regardless of whether or not a condom or other risk-reduction methods is relied upon.23 Consequently, states with HIV-specific laws that make disclosure compulsory, that do not require proof of intent and/or that do not require proof of significant harm or transmission have generally had much higher prosecution rates than those without.24

For example, Louisiana's HIV-specific criminal law, first enacted in 1987 and revised in 1993,25 specifies that it is "unlawful for any person to intentionally expose another to HIV through sexual contact or through any means or contact (including spitting, biting, stabbing with an HIV contaminated object, or throwing of blood or other bodily substances) without the knowing and lawful consent of the victim." The maximum prison sentence is ten years. A 1993 appeal26 found that the statute was neither too vague nor too broad and it has not been challenged since.

In recent years, several people with HIV in Louisiana have been arrested for behaviour that carries a very low risk of HIV transmission, including a man for having oral sex with his wife;27 a male sex worker for suggesting to an undercover policeman, but not actually having, unprotected sex;28 and an injured man receiving medical attention for throwing a "blood-covered identification card into the face" of, and "trying to spit" on, a healthcare worker.29 The outcome of these cases is unknown.

Criminalisation confusion

In the rest of the world, most prosecutions are taking place under general criminal laws, such as physical or sexual assault statutes. Their relevance to HIV non-disclosure, exposure or transmission is often based on legal precedents informed by one or more cases taken to appeal early in the HIV epidemic that were commonly informed by HIV-related stigma and/or incomplete understanding of HIV science. In an attempt to fit non-disclosure, exposure or transmission into a wide variety of legal definitions, many jurisdictions appear to have inappropriately characterised the risks and/or harms of these acts. When the law is unclear – as it often is when it evolves based on case law – this also creates uncertainty over what behaviour is criminal and what is not, leading to conflicting standards of HIV-related risk and the conflation of non-disclosure with a malicious intent to deceive or harm.

This is the case in Canada, the country with the second highest number of prosecutions – at least 130 – after the United States. That’s about one prosecution for every 550 people with HIV – considerably higher per capita than in the US where there have been well over 300 prosecutions but whose larger HIV-positive population means that about one person per 3300 has been prosecuted. Prosecutions intensified following a 1998 Supreme Court ruling which established that a person who knows they are living with HIV has a duty to disclose their HIV status before engaging in conduct that poses a “significant risk” of exposing another person to the virus. Non-disclosure (regardless of whether it is active deceit or as a result of not discussing HIV risk) is treated as fraud that invalidates consent to sex and which results in this sexual contact being classified as an assault.

The problem is that "significant risk” has not been clearly or consistently defined and prosecutions for non-disclosure prior to oral sex31 and sex with condoms32 have taken place. As a result, substantial confusion amongst people living with HIV, healthcare workers and legal practitioners exists regarding when the duty to disclose arises.33

This week, in a case that will have far-reaching implications for people living with HIV in Canada, its Supreme Court will revisit two cases, allowing a re-examining of the 1998 ruling in the light of inconsistent lower court decisions. In particular, it will examine what constitutes a "significant risk" of HIV transmission in the context of recent scientific developments. Although both sides agree that the "significant risk" test is unfair and should be reassessed, the representatives of the Crown are arguing that the only way to make the law work fairly is to obligate disclosure (and, therefore, criminalise non-disclosure) before any kind of sexual activity, regardless of the risk involved. Advocates working to assist the defence are hoping that the Court will recognise advances in HIV science and rule that when a person with HIV uses a condom and/or has an undetectable viral load due to effective antiretroviral therapy the criminal law will not apply.34

When disclosure is no defence

Although the current situation in Canada seems harsh, some countries in Europe have an even more draconian approach. In Austria, Finland, Norway, Switzerland and Sweden, people with HIV can be prosecuted for having consensual unprotected sex even when there was prior disclosure of HIV-positive status and agreement of the risk by the HIV-negative partner.35

Fortunately, most of these countries are in the process of examining such laws and policies. Norway has set up a special committee to examine whether its current law should be rewritten or abolished: its recommendations are due in May.36 Switzerland is currently revising its Law on Epidemics, to be enacted later this year, and the latest version appears to be mostly consistent with UNAIDS' recommendations.37 And a recent conference attended by police, prosecutors and politicians that highlighted the many human rights concerns over its current laws and policies, may result in a review of the Swedish Communicable Diseases Act, as well as a change in the application of legislation and regulations for people with HIV in Sweden by the end of the year.38

England and Wales: a 'best practice' example...

The expert meeting heard how a partnership between the HIV sector and the criminal justice system in England and Wales led to the creation of prosecutorial39 and police guidelines,40 which have helped to clarify the circumstances regarding when prosecutions might be warranted and reduced the flow of cases reaching court. Attempts to replicate this pragmatic response are now going on in Scotland,41 the Canadian provinces of Ontario and Quebec, on a federal level in Canada42 and in the Australian state of Victoria.43

The Crown Prosecution Service prosecutorial guidelines were recently updated to highlight how tests for recent infection are unreliable for legal purposes,44 and to clarify that the reduced transmission risks of having an undetectable viral load on treatment could be seen as an "appropriate safeguard" alongside condoms and thus be used as an affirmative defence in 'reckless' transmission cases.45

...but guidelines aren't always followed

However, there continue to be inappropriate investigations, arrests and prosecutions with remarkably different outcomes often solely depending on whether the accused obtained timely access to good legal advice. "What's weighing on my mind," Lisa Power, policy director at Terrence Higgins Trust (THT) tells HTU, "probably because of these latest cases, is how often the police are still not following their own guidelines and what a huge difference it makes if someone gets a decent, experienced lawyer early on. It's important to remember that so far not one person has been found guilty in England and Wales [who] pleaded not guilty from the start and got decent representation."

Not one person has been found guilty in England and Wales [who] pleaded not guilty from the start and got decent representation. Lisa Power, policy director, Terrence Higgins TrustThis suggests that not only should anyone living with HIV contact THT Direct for referral to a lawyer and/or other support the moment they are involved in a criminal case – as a defendant or a complainant – but also that any healthcare worker should do the same, mindful, of course, of patient confidentiality issues. The benefit of the latter is that THT is then aware of an ongoing case and the healthcare worker may receive some good advice about how to best support the prospective complainant or defendant.

"I think a healthcare worker should ring THT Direct if they have doubts as to their own practice," Yusef Azad, NAT's director of policy and campaigns tells HTU, "and also, when it is published, look to the [updated] BHIVA/BASHH guidance [on the management of the sexual and reproductive health of people living with HIV] - but they, of course, should not disclose any identifiers of a patient without that patient's consent."

For more information

For NAM’s book on HIV and the criminal law and the latest news on the subject, visit: www.aidsmap.com/law

For information if you are personally affected, see: www.myhiv.org.uk/Telling-people/Law. If you are being investigated, or you think that someone may make a complaint against you, it’s important you get good advice from an HIV organisation and find an experienced lawyer prior to making any statement. THT Direct, can help you find both these; you can speak to them in confidence on 0808 802 1221. You may also want to speak to THT Direct if you are thinking of making a complaint. You can find HIV organisations near where you are using NAM’s online e-atlas at www.aidsmap.com/e-atlas.

Edwin’s own blog, which gathers together news and developments on the subject from around the world, is here and you can follow him on Twitter @edwinjbernard.

POZ magazine founder Sean Strub has made a trailer for what he hopes will be a full-length documentary featuring people unjustly criminalised for HIV non-disclosure, exposure or non-intentional transmission. See www.youtube.com/watch?v=iB-6blJjbjc.

References

1.The report will be available at the Global Commission on HIV and the Law's website, www.hivlawcommission.org

2.Pillai N A scandal: HIV in the western world. Nisha Pillai blog, 26 September 2011, at www.nishapillai.com/blog.

3.Available at: www.hivlawandpolicy.org/resources/download/650

4.Barbara Lee press release. Lee Introduces Bill to Fight Discrimination Against People Living with HIV. 23 September 2011.

5.UNAIDS/UNDP Policy Brief: Criminalisation of HIV Transmission. Geneva, 2008.

6.See www.aidsmap.com/page/1322904

7.See http://aidsmap.com/law-country/Western-Europe/page/1444983/ - item1444987

8.Bernard EJ Swiss court accepts that criminal HIV exposure is only 'hypothetical' on successful treatment, quashes conviction. aidsmap.com, 25 February 2009.

9.International AIDS Society Statement on Austrian Laws Impacting People Living with HIV/AIDS (PLHIV) from AIDS 2010, GNP+ and ICW. 12 July 2010.

10.Positive Living BC Top court to review HIV sex law. 25 August 2011.

11.Bernard EJ US: Military court discusses viral load and HIV exposure. Criminal HIV Transmission, 20 May 2008.

12.UNAIDS Expert meeting reviews scientific, medical, legal and human rights issues related to the criminalisation of HIV exposure and transmission. 7 September 2011.

13.Comprehensive background papers and the meeting report will be available soon at www.unaids.org.

14.Bernard EJ Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group. Criminal HIV Transmission, 17 February 2011.

15.Isles K Guyana hailed for not criminalising HIV transmission. Demarara Waves, 8 September 2011.

16.Sens Pozitiv Knowingly transmitting HIV is a criminal offence in Romania. 17 June 2011.

17.Fokazi S Zille targets men who don’t use condoms. Cape Argus,9 November 2011.

18.Global Network of People Living with HIV (GNP+) 'The Global Criminalisation Scan Report', Amsterdam, 2010. For more up-to-date information, see the author's blog, criminalhivtransmission.blogspot.com.

19.Bernard EJ Belgium: First criminal conviction under poisoning law, advocates caught unawares. Criminal HIV Transmission, 13 June 2011.

20.Bernard EJ Congo: First ever criminal prosecution nets 15 years for husband under poisoning law. Criminal HIV Transmission, 11 March 2011.

21.GNP+ Op. cit. 

22.Center for HIV Law and PolicyEnding and Defending Against HIV Criminalisation, Vol 1:  State and Federal Laws and Prosecutions, Fall 2010;  Positive Justice Project Prosecutions for HIV Exposure in the United States 2008-2011

23.Galletly CL, Pinkerton SD Conflicting messages: how criminal HIV disclosure laws undermine public health efforts to control the spread of HIV. AIDS Behav. 10(5):451-61, 2006.

24.Bernard EJ Kafkaesque: a critical analysis of US HIV non-disclosure, exposure and transmission cases, 2007-2009. 18th International AIDS Conference, Vienna, abstract THPE1016, 2010.

25.La. Rev. Stat. Ann. § 14:43.5

26.State of Louisiana v. Salvadore Andrew Gamberella Nos. 93 KA 0829, 93 KA 0830 Court of Appeal of Louisiana, First Circuit 633 So. 2d 595 29 December 1993.

27.Husband held on rape, HIV charges. The Times-Picayune, 12 February 2008.

28.Pleasant M Houma man accused of attempted HIV exposure. The Daily Comet, 21 June 2009.

29.Associated Press Louisiana Man Arrested After Allegedly Trying to Expose Hospital Staff to AIDS Virus. Fox News, 29 December 2009.

30.Elliott R Is Canada fuelling HIV stigma? The Mark, 15 August 2011.

31.See R v. Aziga, (4 April 2009), Hamilton CR-08-1735 (convicting on aggravated sexual assault charge based on unprotected oral sex).

32.See, for example, R. v. Mabior, 2008 MBQB 201 (Can. Man.) (requiring disclosure of HIV status even with condom use if viral load is detectable), reversed by R. v. Mabior, 2010 MBCA 93 (Can. Man. C.A.).

33.Mykhalovskiy E. The problem of "significant risk": Exploring the public health impact of criminalising HIV non-disclosure. Social Science & Medicine 73(5):668-75, 2011.

34.Bernard EJ. Canada: Urgent - support the call for prosecutorial guidelines in Ontario. Criminal HIV Transmission, 23 November 2011.

35.GNP+ Op. cit.

36.UNAIDS. Countries questioning laws that criminalise HIV transmission and exposure. 26 April 2011.

37.Unpublished personal communication with the author.

38.IPPF press release World AIDS Day 2011 - Sweden in the spotlight! 1 December 2011.  See also: www.hivandthelaw.com/campaign/what-can-you-do/success-stories/sweden-0

39.Crown Prosecution Service Intentional or Reckless Sexual Transmission of Infection: Legal Guidance. Updated July 2011.

40.See: www.nat.org.uk/Our-thinking/Law-stigma-and-discrimination/Criminal-prosecutions.aspx

41.Unpublished personal communication with the author.

42.See: www.ontarioaidsnetwork.on.ca/clhe/

43.Push for HIV law clarity. Star Observer, 22 September 2011.

44.UNAIDS New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions. 4 August 2011.

45.See: www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/ - Safe