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Criminalization of HIV – Media Speaking Points (January 2009)

Ontario Working Group on Criminal Law and HIV Exposure

The Impact of Criminalization on the AIDS Epidemic in Canada

Media Speaking Points

Recognizing the devastating impact of an HIV diagnosis

No one wants to be infected with HIV. An HIV diagnosis can have a devastating effect on a person, especially if he or she has been deceived, and can result in feelings of anger, betrayal, grief and a desire for revenge.

Behind each HIV diagnosis there is a story. People put themselves at risk for getting HIV, or of infecting others, for complex reasons. It is almost never the case that someone maliciously and intentionally sets out to infect another person.

Criminal charges, trials and convictions are not a cure for HIV. They cannot rid anyone’s body of the virus. And they will not stop the HIV epidemic.

To reduce the number of new HIV cases, we need to ensure people who are infected with HIV receive proper medical care and other support. We need innovative public education campaigns so that everyone is aware of their risks. And we need to fight the stigma that forces so many HIV+ people to hide their status. These measures will promote the wellbeing of people infected with HIV and reduce the spread of HIV.


HIV, sex and the criminal law in Canada

There are a growing number of criminal cases against HIV+ people in Canada for failing to disclose their HIV status before engaging in some types of sex. Under Canadian law, people living with HIV have a legal obligation to disclose their HIV+ status to people before engaging in sexual activities that pose a “significant risk” of transmitting HIV. 1

Significant risk is an imprecise term. It creates confusion for HIV+ people and their sex partners. While courts have clearly decided that vaginal or anal sex without a condom poses a significant risk of HIV transmission, it is not clear what other sexual activities can lead to criminal prosecutions and convictions.

What is clear is that each year the number of charges brought against HIV+ people who are alleged to have not disclosed is increasing. And HIV + people have been convicted and jailed even where their sex partner has not become infected with HIV. What is also clear is that the turn to criminalization of HIV non-disclosure in Canada has gone forward without sufficient information and debate.


What does criminalization do?

What does criminalization of HIV non-disclosure do for public policy?

The wholesale criminalization of HIV non-disclosure is bad public policy because it undermines HIV prevention, is harmful to HIV+ people and impacts negatively on Canadian society.

Criminalization diverts attention from developing and implementing policies that have proven effective at reducing new HIV infections. We really need policies that support the scale- up of HIV testing and counseling, provide harm reduction services, and address the social determinants of HIV risk including poverty, violence, substance use and discrimination.2

The criminalization of HIV non-disclosure attempts to prevent HIV transmission through deterrence and punishment. This approach has been strenuously criticized as bad public policy by leading judges, legal scholars and international organizations including the Joint United Nations Program on HIV/AIDS.2,3,4,5

Criminalization of HIV non-disclosure is part of a growing trend to respond to complex social problems using the blunt instrument of criminal law. “Law and order” approaches to problems such as drug use have proven counter-productive. 6,7 There is no reason to expect that the use of criminal law to reduce HIV transmission will work any better.

Public policy should be based on the best available evidence. Canada’s embrace of criminalization reflects moral judgments and unfounded assumptions, rather than evidence. There is no good evidence to show that criminalization of HIV non-disclosure makes HIV+ people more likely to disclose their status, reduces sexual behaviours that place people at risk of HIV, or reduces new HIV infections.


What does criminalization of HIV non-disclosure do for the public health response to HIV/AIDS?
    • Criminalization weakens the public health response to HIV/AIDS.
    • The criminal law approach stands in stark contrast to evidence-based, flexible and effective public health strategies that involve education, testing, counseling, and a range of sanctions to respond to behaviors that places others at risk. 8,9
    • Criminalization can make people fearful of HIV testing and less likely to approach the public health system for information on reducing risk and support for safer behaviours. 10
    • Untested and therefore untreated people are usually more infectious and more likely to spread HIV to others. 11


What does criminalization of HIV non-disclosure do for the court system?
    • Criminalization promotes clogged courts. Our court system is already overburdened. Dealing with HIV non-disclosure in the courts comes with a high cost to both society and the people involved.
    • Courts may not be in a position to make the right decision. Since these cases are about the intimate details of personal relationships, it is often difficult to prove or defend against such charges. And police, prosecutors and judges are not experts in epidemiology, public health or the science of HIV transmission. So decisions about laying and prosecuting criminal charges, and court decisions, may be influenced by prejudices and fears.
    • Recent court decisions are not supported by scientific and medical advances in knowledge about HIV. For example, numerous studies show that people living with HIV who are taking antiretroviral therapy and who have undetectable viral loads have a negligible risk of transmitting HIV during unprotected sex. 12 We also now know that for many people medications have rendered HIV a chronic manageable infection, not the “death sentence” it was when HIV exposure was first criminalized.
    • Finally, people may use the criminal justice system for personal gain. They may lay charges (or threaten to do so) against a sexual partner to control that person, out of a desire for revenge, or when a relationship breaks down. If they are good liars, their sex partners may be wrongly convicted and end up in jail, sometimes for years.


What does criminalization of HIV non-disclosure do to community organizations?
    • Responding to criminalization places unnecessary new burdens on already over-burdened community organizations. Every day there are more and more people living with HIV in Canada, yet government and private support has not kept pace with this ever-increasing need for front-line services.
    • AIDS service organizations should be able to devote their energy and resources to services that have been shown to reduce HIV transmission and improve the lives of people living with HIV—education, testing, access to harm reduction materials, support services and programs addressing stigma, discrimination and poverty—rather than being forced to devote resources to legal counseling and advocacy. 13
    • Fears of legal liability are also interfering with counseling and education work in community organizations.


What does criminalization of HIV non-disclosure do for people living with HIV?
    • Criminalization demonizes people living with HIV and places them at greater risk of isolation, stigmatization and discrimination.
    • Criminalization is a backward step in the response to HIV that can make people less likely to disclose their status if they know it, or to find out their status by getting tested.10
    • High profile criminal cases have received sensationalized media coverage. Rather than educating the public about the issue, much of the media coverage demonizes HIV+ people. Canadian media have referred to people living with HIV facing charges for non-disclosure as irresponsible, 14 callous, cavalier, outrageous, lethal, heinous, 15 self-centered and reckless. They also present HIV+ people as dangerous threats to the health of the public. For example, one newspaper story urged people who had kissed an HIV+ man facing charges “to go see your doctor.” 16 Such media reporting is irresponsible and promotes misunderstanding of people living with HIV and fosters stigma against them. 17 All told, criminalization promotes fear among HIV+ people of being rejected, discriminated against, and treated as social pariahs or criminals.
    • Using the criminal law to address issues of HIV exposure may have disproportionate impacts on specific groups including racialized men and newcomers to Canada, aboriginal women, prisoners, and other groups of people who are socially marginalized. Moreover, some people living with HIV, especially sex workers and women in abusive relationships, may face violence if they are obligated to disclose their HIV to sex partners even where there is negligible risk of HIV transmission.

What does the criminalization of HIV non-disclosure do for the general public?
    • Criminalization makes the general public more vulnerable to HIV infection by giving people a false sense of security.
    • Criminalization sends the message that because HIV+ people have the responsibility to disclose their HIV status, people are “safe.” This may increase risk behaviours amongst HIV negative people who will count on every HIV+ person to disclose.
In fact, studies in some communities show that the majority of cases of HIV transmission occur before people are aware of their HIV status—when the person is highly infectious and before the person has anything to disclose to their sex partner.
Criminalization takes the emphasis away from the tradition of shared responsibility for safe sex and preventing the spread of HIV. It is everyone’s responsibility, whether they know their HIV status or not, to ensure that HIV is not transmitted.
    • Criminalization potentially divides communities that need to be working together to fight the spread of HIV.


What are the alternatives to the criminal law?

Give public health authorities a greater role. A model for this already exists in Canada—the “Calgary Model,” developed by the Calgary Health Region and endorsed by an intergovernmental panel of HIV experts. 18 Public health authorities should do their utmost to support people to integrate their HIV infection into their lives, while promoting their health and that of their sexual partners. Public health interventions should progress from the least invasive, least restrictive responses, to more restrictive or coercive responses, including legal sanctions under public health laws, if necessary. To be successful, public health in some regions will need more resources than they currently have.

Re-commit to HIV prevention. All levels of government should focus HIV prevention and awareness on people who do not have the knowledge or skills necessary to protect themselves from HIV. Public health should undertake these two activities in concert with community-based organizations that serve the needs of people living with or at risk of HIV. To be successful, some regions and communities will need more resources.

Restrict the use of the criminal law. UNAIDS has urged governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.3

Recognize that HIV is here to stay. There is no cure. And the reasons people become infected with HIV are complex and involve sex, disease, poverty, and power within relationships and in society. So it is unrealistic to expect that we can prevent all new cases of HIV, or that something as blunt as the criminal law will make a real difference in decreasing the number of new HIV infections.

Fight ignorance and stigma. Ask yourself, “What keeps some people from disclosing their HIV status?” The answer for many of these people is the stigma and discrimination that people living with HIV face every day. If there were less ignorance, prejudice and stigma people would have less difficulty disclosing their HIV status.




For more information contact the Ontario Working Group on Criminal Law and HIV Exposure at CLHE@pwatoronto.org.

References
1 Canadian HIV/AIDS Legal Network. 2008. Criminal Law and HIV Info Sheets. www.aidslaw.ca/publications/publicationsdocEN.php?ref=847.
2 Open Society Institute. 2008. 10 reasons why criminalization of HIV exposure or transmission is bad public policy. www.soros.rg/initiatives/health/focus/law/articles_publications/publications/10reasons_20080918.
3 UNAIDS. 2008. Criminalization of HIV Transmission Policy Brief.
http://data.unaids.org/pub/BaseDocument/2008/20080731_jc1513_policy_criminalization_en.pdf
4 World Health Organization Europe. 2006. WHO Technical consultation in collaboration with the European AIDS Treatment Group and AIDS Action Europe on the criminalization of HIV and other sexually-transmitted infections.
http://www.keele.ac.uk/research/lpj/Law_HIV-AIDSProject/WHOcrimconsultation_latest.pdf
5 Burris, S. and Cameron, E. 2008. The case against criminalization of HIV transmission. Journal of the American Medical Association. 300(5): 578-580.
6 DeBeck, K. ,Wood, E., Montaner, J., Kerr, T. 2006. Canada’s renewed drug strategy—an evidence-based review. HIV/AIDS Policy & Law Review. 11(2/3): 1-12. www.aidslaw.ca/publications/publicationsdocEN.php?ref=656.
7 Justice Policy Institute. 2007. Effective Investments in Public Safety: Drug Treatment. www.justicepolicy.org/content-hmID=1811&smID=1588&ssmID=52.htm.
8 Holtgrave, D. Qualls, N., Curran, J., et al. 1995. An overview of the effectiveness and efficiency of HIV prevention programs. Public Health Reports. 110(2):134-146.
9 Johnson, W., Gedges, L, Ramirez, G. et al. 2002. HIV prevention research for men who have sex with men: A systematic review and meta-analysis. JAIDS. 30(supplement 1): S118-S129.
10 Dodds, C. and Keogh, P. 2006. Criminal prosecutions for HIV transmission: people living with HIV respond. International Journal of STD & AIDS. 17(5): 315-318.
11 Marks, G., Crepaz, N., Janssen, R. 2006. Estimating sexual transmission of HIV from persons aware and unaware that they are infected with the virus in the USA. AIDS. 20(10):1447-1450.
12 An article published in the Bulletin of Swiss Medicine stated that HIV+ people are sexually noninfectious under the following conditions: the person adheres to antiretroviral treatment which is regularly monitored, viral load has been suppressed to undetectable levels for at least six months and there are no concurrent sexually transmitted infections. See Vernazza P, Hirschel B, Bernasconi E, et al. 2008. Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitement antiretroviral efficace ne transmettent pas le VIH par voie sexuelle. Bulletin des médecins suisses, 89:165-9.
13 Caucus for Evidence-based Prevention. Behavioural and social interventions for HIV prevention. www.hiv-prevention.org/docs/topics/Behavioral-Social_Interventions_for_HIV_Prevention_FactSheet.pdf
14 Jimenez, M. and Priest, L. “On trial for murder by disease.” The Globe and Mail. May 15, 2007, A12.
15 Brieger, P. “Man with HIV gets 4 years in prison.” National Post. Jan. 20, 2007, A16.
16 Abbate, G. “Man’s sexual partners warned.” The Globe and Mail. Sept. 11, 2003, A16.
17 Petty, M. 2005. Social responses to HIV: Fearing the outlaw. Sexuality Research & Social Policy. 2(2): 76-88.
18 Bessner, R. 2005. Person who fail to disclose their HIV status: conclusions reached by an expert working group. Canada Communicable Disease Report, 31(35): 53-61. www.phac-aspc.gc.ca/publicat/ccdr-rmtc/05vol31/dr3105e.html.

Criminalization of HIV – Media Speaking Points (January 2009). © Canadian AIDS Society. Published 07/24/2009. Updated 02/28/2010. Web. Retrieved 06/30/2016 from http://www.cdnaids.ca/criminalizationofhivmedia