The180·The 180

Why it's time for Canada to stop criminalizing HIV

If you are HIV positive and do not tell your sexual partner, you can be prosecuted for aggravated sexual assault in Canada. Richard Elliott, Executive Director of the HIV/AIDS Legal Network, argues that approach further stigmatizes those living with HIV and weakens public health efforts on testing.
A free HIV test is administered in the United States as part of National HIV Testing Day in 2013. Here in Canada, Richard Eillott of the Canaidan HIV/AIDS Legal Network argues testing, medication, and condoms are among the reasons why Canadians with HIV should not be subject to criminal charges for keeping their health status from sexual partners. (David Goldman/Associated Press)

Canada is one of the most aggressive countries in the world when it comes to prosecuting people for HIV non-disclosure — the failure to reveal an HIV positive status to a sexual partner. 

But Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network, says the law has gone too far. 

"We're unfortunately doing damage to not only people living with HIV, but to public health efforts more broadly when we over-extend the criminal laws," he says. 

The full interview is available in the audio player above. The following portions have been edited for clarity and length.

How are we doing damage with this? 
We are reinforcing and contributing to the fairly profound and pernicious stigma that still surrounds HIV. Paradoxically, if what you are trying to do is encourage disclosure of the fact that you have HIV, further stigmatizing that status by threatening the possibility of criminal prosecutions only reinforces that stigma, and that's actually a barrier to people disclosing.

It's also a fairly practical reason for someone to think twice about whether they in fact should seek an HIV test — if finding out that you have HIV then exposes you to the risk of possible criminal prosecution... then that might be a very good reason not to seek out that information.

So you're saying this could actually stop people from getting tested for HIV because they lose that deniability? 

I'm not suggesting it's the only factor at play, but I don't think that we can ignore that if you increase the potential negative consequences of getting tested, then you have affected people's calculus about whether or not it's a good thing to get a test. We know that one in four, to one in five people in Canada who are living with HIV don't in fact have a diagnosis. And what you don't want to do is create further barriers to those people getting testing and treatment because that's good for their health and public health.

You're looking at this from the point of view of someone who is HIV positive, but I think a lot of listeners would put themselves in the shoes of the unknowing partner and say this law does make sense because they wouldn't want to be unknowingly exposed to HIV/AIDS. 

I totally understand that impulse in this discussion. But we need to question that and think about it in a more complex way.

First of all, the notion that I am completely unable to protect myself against the possibility of HIV infection, unless my sexual partner tells me that, is just not true. We also know that in fact if someone is being successfully treated with very powerful anti-retroviral medications, the amount of virus circulating in that person's body — what's called as viral load — is dramatically reduced to the point that it can be considered undetectable. And if you have a very low viral load, the risk of transmitting HIV to a sexual partner is correspondingly reduced very dramatically, down to approximating zero. 

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, says Canadian courts have over reached when it comes to prosecuting HIV non-disclosure.

So the notion that if I don't know that my partner has HIV because that partner doesn't tell me, therefore the law should step in to charge that person with a very serious offense like aggravated sexual assault seems to me like something of an overreach of the law because there are some things I can do, some responsibilities I can exercise and it may well be that my partner actually poses no risk of infection to me. 

For quite awhile, HIV/AIDS was considered a death sentence. Is that part of hte problem, that this notion still affects how Canadians and the justice system view it? 

There's no question that that is at play. In fact, if you look at the law of aggravated sexual assault, which is the offense in the criminal code that has been used in Canada to deal with circumstances of HIV non-disclosure, it's not specific to just HIV and in theory you could see other prosecutions for not disclosing other sexual transmitted infections. 

But what we have seen is that almost all of the prosecutions have been against people living with HIV - more than 180 prosecutions, and we have five or six prosecutions for other sexually transmitted infections. That right there is an obvious indicator that part of what is driving this is sense of fear.

But that fear does relate to some less than sophisticated messages about HIV and HIV prevention, and certainly doesn't reflect the science we now have where we have a much more sophisticated understanding of what the risks are and are not. 

What you see time and time again in these prosecutions is this exaggerated sense of the risks associated with a particular act. So the notion that well we had one act of anal sex or vaginal sex without a condom and therefore I must for months or years live in fear that I got infected with HIV, even though the chance of that is exceedingly exceedingly small, nonetheless seems to animate people's thinking about this and sets in motion a narrative that plays out in these prosecutions. 

Why hasn't the public education kept up with the medical advances? We're not still freaked out about polio, why are we still freaked about AIDS? 

We haven't had the investment in more sophisticated HIV education that is needed. So what we mostly see about HIV in any media that is consumed en masse, is the story about a criminal charge laid against someone, often with a sensational headline, usually with a picture and the person's name displayed across the newspaper and the Internet even if all that play is an allegation.  And that's the most common and dominant representations of HIV and one of the things that sensational coverage like that reinforces is the already existing notion that the risk must be really serious and high, because if it weren't, why would be laying some of most serious criminal charges in the criminal code against someone? 

UNAIDS has proposed legislation that prosecutes people who knowingly and intentionally transmit HIV to their partners. Is that the direction for Canada to take? 

It is - and what's been recommended is that it would be better not to have criminal laws that are specific to HIV, for obvious reasons of stigma, but that any laws should limit criminal liability to both intent to actually cause the harm of infecting someone else and actual infection does result. At the moment, Canada goes way beyond that fairly narrowly circumscribed application of the criminal law. 

Click the play button above to hear the full interview with Richard Elliott.

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