A 17-year-old Edmonton girl was charged last week with two counts of aggravated sexual assault after allegedly having sex with two men without informing them of her HIV-positive status. The girl had been the subject of an urgent police bulletin, which led to the worldwide publication of her name, picture and health status.
Aside from painting a rather ghoulish picture of people living with HIV, such unusual cases inevitably send the message that the best way to handle HIV-non-disclosure is through the criminal law. Police forces across the country seem to have got the message, given the increase in the number and severity of charges laid for HIV-non-disclosure in recent years. Well over 100 HIV-positive people across Canada — and at least 14 in B.C. — have now been charged with offences ranging from assault to first-degree murder.
Courts, too, have been enthusiastic in prosecuting cases of non-disclosure, with defendants receiving everything from suspended sentences to an indeterminate and potentially lifelong sentence of imprisonment.
This enthusiasm for criminal prosecution exists despite — or perhaps because of — uncertainty about the disclosure obligations of HIV-positive people. The Supreme Court of Canada has held that individuals are under a legal duty to reveal their HIV-positive status before engaging in sex that poses a “significant risk” of HIV transmission, but what constitutes a significant risk remains unclear.
Penetrative sex without a condom usually qualifies, but it might not if the positive person is being treated and has an undetectable viral load. The law is also not entirely clear on penetrative sex with a condom, or oral sex with or without a condom, or sharing needles with or without disinfection, or the breastfeeding of an infant by an untreated HIV-positive mother, though at least one such mother was found guilty of failing to provide the necessities of life.
Yet this lack of clarity is, in a sense, beside the point. For as the Canadian HIV/AIDS Legal Network has argued, even if the law is eventually clarified, it will, in the vast majority of cases, fail to protect people from exposure to HIV. Indeed, if anything, it will do the exact opposite.
After all, since not knowing one’s HIV status probably — though not certainly — insulates one from prosecution, criminalizing HIV transmission deters testing, not unsafe sex. Similarly, since medical records containing one’s HIV status can be used in court, criminalizing HIV transmission can deter people from seeking treatment.
And the failure to test for and treat HIV infection means that positive individuals will be at risk of developing serious illnesses. Meanwhile, their negative partners will be at heightened risk of becoming infected, since untreated people are generally more infectious than those receiving medication.
Criminalization can therefore have the unintended effect of increasing, rather than decreasing, HIV transmission. This is so even if convicted individuals are incarcerated, since many prison inmates engage in unprotected sex, needle sharing and tattooing, and at least some of these inmates will eventually be released into the community.
Fortunately, there is an alternative to this counterproductive approach, an approach that sees HIV transmission as a public-health problem rather than a criminal one. In contrast to the criminal-justice system, which typically deals with problems after the damage has been done, the public-health system adopts proactive approaches to reduce the incidence and prevalence of disease.
Specifically, public-health agencies seek to understand why HIV-positive individuals resist informing their partners — this may be the result of fear of a violent reaction, especially in abusive relationships, or of cultural attitudes toward sex and HIV — and to offer such individuals counselling, education and support.
And if that doesn’t work, public-health officials are authorized to issue orders to control individuals’ behaviours. Although the laws differ from province to province, many provinces permit for a “graduated response” — one where health authorities can issue orders of increasing severity, from ones mandating counselling and treatment, to ones prohibiting certain behaviours, to apprehension and detention.
Unlike the criminal approach, then, the public-health approach provides for an array of responses that can be tailored to individuals. And unlike the criminal approach, the public-health approach is likely to have a deterrent effect on risky behaviours.
If it doesn’t — if all else fails — criminal prosecutions might be appropriate as a last resort. But, if we really care about eradicating HIV, only as a last resort. (The Vancouver Sun)