Criminalization of HIV in Canada

Yup, you read that right.

Ok, let me back up. I attended a seminar today called “HIV Testing and Disclosure: Public Health or Legal Matters?” at Dalhousie’s Weldon Law Building. The talk was given by Professor Jacqueline Gahagan who is part of the Gender and Health Promotion Studies Unit at Dal. Now if you didn’t know already, people with HIV in Canada must reveal their status due to what was outlined in the Cuerrier case of 1998 regarding disclosure.

So what’s all the fuss about it? Well, here it is: An October 2o12 decision by the Supreme Court of Canada upheld a law that can see HIV positive people charged with aggravated sexual assault should they engage in a sexual act with another person without having disclosed their status. The decision clarified that only those people who have a low risk of transmitting the virus thanks to medication and who use a condom are off the hook.

Sounds pretty legit right? I mean, shouldn’t HIV status people who go running amok and engaging in dangerous sexual behavior without telling their partners their little secret be criminalized?

Ah, if only it were so simple.

You see, that might be the worst thing you could do. The criminalization of HIV transmission, and particularly in light of non-disclosure, is going to further stigmatize individuals already living with HIV. It will discourage people from getting tested or treated for HIV for fear of being prosecuted; it could potentially undermine the trust between health professionals and health providers; and it more generally can prevent people from having open conversations about their sexual practices in looking for preventative advice because they’re worried that by having those conversations they may actually place themselves in jeopardy in terms of criminal sanctions.

There is another side to this piece. Apparently, if you didn’t know you have HIV, then the law will let you off because you weren’t being malicious when you had sex with what’s-his-face.

So we’ve got all sorts of conflicting messaging out there. On the one hand: get tested, know your status, and if you happen to find that you’re positive then you’re obliged to disclose it, and if you don’t then you could face criminal sanctions. The other side of it is: don’t get tested, don’t know your status, and then you don’t have to have any discussions around disclosure, and you can claim that you had no idea you were HIV positive.

If you’re as baffled by the stupidity of this, then know that I am in the same boat as you.

My stance on the decision?  I think that we need to take into consideration the context within which non-disclosure occurs. There are reasons behind why individuals who may know their HIV status may not be willing to share. We can’t fix this by using the heavy hand of the law. Also, consider this: when we see the use of criminal sanctions against people with a HIV, it’s often in light of a failure of public health interventions to get at the root of the problem. So maybe we should be turning our gaze to that instead?

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