In a television interview this week, actor Charlie Sheen revealed he is living with HIV, claiming that part of his reason for doing so is to put an end to years of rumours as well as extortion through threats of revealing his status. His revelation has prompted a flurry of media attention and many questions about privacy, HIV disclosure and potential legal ramifications.
As Sheen said of his HIV diagnosis: “It’s a hard three letters to absorb.” Part of what makes that the case is the ongoing prevalence of stigma surrounding HIV. The Canadian HIV/AIDS Legal Network defends and promotes the human rights of people living with HIV. Sadly, we can expect that many discussions provoked by Sheen’s revelation will continue to be marred by misinformation and stigma — and we hope to address some of those misperceptions and prejudices.
One important issue is the often exaggerated fear about risk of HIV infection through sex. In fact, the likelihood of transmission is much lower than is frequently thought — even the activity posing the highest statistical risk, unprotected anal sex, is an estimated 1% where the HIV-positive person is the insertive partner.
And, of course, the risks can be much lower still. For example, if a latex condom is correctly used, the risk of transmission is effectively zero. Similarly, successful treatment with anti-HIV drugs means a person’s viral load — the amount of virus circulating in their system and present in body fluids — is reduced to “undetectable,” thereby also dramatically reducing the risk of transmission to a sexual partner. In fact, recent and ongoing studies demonstrate no instances of transmission from an HIV-positive partner with a suppressed viral load to an HIV-negative partner.
Misinformation about HIV and the risks of its transmission — and the fear rooted in such misinformation — is one important factor contributing to the stigmatization of people living with HIV. That stigma is itself a major barrier to disclosure, whether to sexual partners or in other contexts. Similarly, stigma and the fear of negative repercussions — including possible legal consequences — is another disincentive for individuals to seek HIV testing; this creates a significant public health concern, given that an estimated 1 in 4 Canadians living with HIV are unaware of their infection. Finally, misinformation creates a further barrier to seeking health care when private health information, including ostensibly confidential discussions with health professionals, is used as evidence against people living with HIV in criminal prosecutions.
Despite the negative consequences of the overly broad application of the criminal law, and despite the solid scientific evidence about the marginal risks of exposure, Canada has the unfortunate distinction of being a world leader in the criminalization of alleged non-disclosure of HIV. In Canada, people living with HIV have been charged and convicted of sexual assault for not disclosing their status, even though their activity did not pose a “realistic possibility” of transmission. Instead of empowering people living with HIV to disclose their status and to feel safe doing so, the overly broad criminalization of HIV non-disclosure contributes to a climate marked by anxiety, fear, stigma and misinformation, undermining HIV counselling, education and prevention efforts. This puts all Canadians at greater risk.
It’s because of these circumstances that there is a growing call, from many quarters, for correcting the damaging turn taken in Canadian law and for prosecutors to exercise greater restraint.
Last year, nearly 80 scientific experts from across Canada released an important consensus statement outlining the low-to-zero possibility of a person living with HIV transmitting the virus in various situations. This statement was developed out of a concern that “a poor appreciation of the scientific understanding of HIV and its transmission” is contributing to the overly broad use of criminal charges against people for alleged non-disclosure of HIV status.
Furthermore, there is a growing critique of the misuse of sexual assault charges for HIV non-disclosure. The Legal Network has been exploring the implications of using sexual assault law to prosecute HIV non-disclosure cases, given the marked differences between the types of conduct that are typically referred to as sexual assault (including rape) and HIV non-disclosure cases. Together with Goldelox Productions, the Legal Network produced the short documentary film Consent: HIV Non-Disclosure and Sexual Assault Law, which features eight leading feminist scholars, front-line workers, activists and legal experts in a ground-breaking dialogue on the (mis)use of sexual assault laws in cases of HIV non-disclosure.