HIV is more than an illness, it is a physical, psychological and social condition. No longer a “death sentence”, sometimes people call it chronic and manageable given the new medications that have been created. But, between taking piles of pills each day, experiencing grave side effects and being brutalized by the stigma attached to the illness, many people living with HIV balk at this idea of manageability and see HIV as a sentence of different kind. And now, with the dramatic increase in the number of criminal prosecutions of people living with HIV, the sentence might actually be life behind bars.

Based on Supreme Court of Canada decisions, Canadian criminal law requires people living with HIV to disclose their HIV status before engaging in any risk activity that may present a “significant risk” of passing on HIV so that their partner can provide “informed consent” to engage in the activity. If they fail to tell their sex partner their status, they can be charged with such serious offences as sexual assault, aggravated assault, criminal negligence and murder. Charges can be laid even if they do not pass on HIV to their partner.

While the law is clear that unprotected vaginal and anal sex constitute significant risk, it remains unclear whether activities such as sex with a condom, oral sex or other activities pose a high enough risk to be considered “significant”. While we know that factors such as HIV viral load, having other STIs, or being the insertive or receptive partner can influence how much risk is attached to an activity, it is also unclear how the law would interpret these factors. What is clear is that in the absence of firm guidance in these matters, courts will continue to exercise significant discretionary power in interpreting these risks and people living with HIV will continue to live in an uncertain environment unsure of what is required of them.

This is particularly alarming as courts in the US have demonstrated an inability to discern real risk from imagined risk, as demonstrated in a recent case: a homeless man living with HIV spat on a police officer and was sentenced to 35 years because the jury felt that his spit was a “deadly weapon”, despite the lack of any scientific evidence that HIV can be spread through saliva. It is unrealistic to think that police, prosecutors and judges are experts in HIV transmission or immune from misconceptions and fears about HIV. Likewise, as these cases often involve lawyers appointed through legal aid who have very little time to devote to building a case, even the defence attorneys may not have time to gather the necessary information.

But the real tragedy is that this criminalization of HIV does little to address the real issue. If the goal of criminalizing HIV is to reduce its spread, then from a public health perspective the strategy has totally missed its mark!

Increasing Stigma and Transmission

While media accounts of irresponsible, callous, reckless people living with HIV would have us all believe that there are legions of people out there trying to spread the virus, in reality it is rare that people intentionally seek to transmit HIV to another person. Instead, people may not to disclose their status for a number of reasons ranging from fear of rejection, concerns about others finding out about their status, fear of discrimination or violence, or the belief that the activities they are engaging in are not placing their partner at risk. Unfortunately, due to the stigma attached to HIV and the challenge this creates, many people living with HIV risk criminal prosecution when they are unable to manage these factors. While the hard line of the law on this issue presents the impression that offenders are being dealt with and HIV transmission is being stemmed, the reality on ground may be quite different.

Research in some communities has demonstrated that most HIV transmission occurs when people do not yet know their HIV status and have nothing to disclose, soon after they are infected when their viral loads spike and it is easiest to pass on the virus. Ironically, the fear of criminal prosecution makes people more fearful of HIV testing or seeking information to reduce their risks, which makes them less likely to know their status. In turn, people who do not know their status are less likely to access treatment, and more likely to be infectious, leading to higher risks of HIV transmission. Meanwhile, nasty media coverage of people living with HIV involved in criminal cases leads to even greater stigmatization, social isolation and fears of rejection on the part of people living with HIV, contributing to an increased reluctance to disclose their status.

Also, such cases provide the general public with a false sense of security, reinforcing the message that people living with HIV are required by law to disclose their HIV status and implying that those who do not disclose must be “safe”. Criminalization shifts responsibility from both partners to the person living with HIV, creating the impression that it is the sole responsibility of the positive individual to lead discussions about HIV and to discuss safer sex and reducing risks. Meanwhile, the law fails to take into account the power differentials and risks involved for people living with HIV in disclosing their status, making vulnerable groups even more vulnerable (e.g. people in abusive relationships, sex workers, prisoners).

Overall, it is unclear whether the criminalization of HIV has done more to spread HIV than to prevent its transmission. What is clear is that the impact on people living with HIV has been severe. Most people living with HIV are extremely vigilant about not putting others at risk, and about disclosing their HIV status to their sexual partners. Such laws stigmatize these well meaning individuals while undermining the support of the community. The lack of clarity in the law leaves people confused about what is required of them and worried that they may unintentionally transgress the law.

Protection from Criminal Prosecution

Given the requirements of Canadian criminal law, there are several steps people living with HIV can take to make sure they stay clear of the law.

1. Communicate clearly with sexual partners and avoid using language that might be confusing such as “poz” or “positive”. It is best to state “I am HIV positive” or “I am infected with HIV”.

2. Ensure that sexual partners understand what it means to be HIV positive, and educate them on important facts. (i.e. HIV is the virus that causes AIDS, there is no cure for HIV and HIV can be transmitted through sexual activities.)

3. Consider whether your sexual partner is in a state of mind where they can understand what you are saying and make informed choices. If they are heavily under the influence of drugs or alcohol, their ability to provide informed consent may be questionable and if they can’t remember that they gave consent at all then you could have a problem on your hands later!

Unfortunately, even if you take these steps to educate your sexual partners to make informed choices, there is still some risk that later they could deny that you told them your HIV status. Increasingly, people living with HIV are developing strategies to gather evidence or proof that they disclosed their status to protect themselves from false accusations. Some ideas include:

• Having a witness present when you disclose your status

• Double checking with the person to ensure that they have understood

• Saving any written records you have (e.g. e-mails, online conversations)

• Talking to your counsellor to create a record documenting your disclosure

• Signing a document or contract with your sexual partner, detailing your disclosure and their understanding of risk.

Recently one person living with HIV suggested they have gone so far as to save the condoms they used when they had sex so that later they could prove they had protected sex. While some of these strategies might seem extreme, and certainly could take some of the fun and spontaneity out of hooking up, at least they provide some options to make sure people don’t face problems down the road.

The other key thing people living with HIV can do to protect themselves is to reduce the risk of passing on their HIV. While the criminal law is unclear on what the rules are, the Alberta Public Health Act leaves no doubt. It states that people living with HIV must not engage in activities that can transmit disease and that they must always wear condoms for any penetrative sexual activity (vaginal, anal or oral). Also, people must always disclose their HIV status to their partners before engaging in any penetrative sexual or drug-sharing activity and cannot donate blood, semen, tissues or organs.

The penalties for violating Alberta Public Health law are not as grave as those under criminal law, but include interventions such as public health orders requiring counselling and limiting sexual activities and isolation orders subjecting people to “house arrest”. To date in Alberta we have seen very few criminal prosecutions of people living with HIV, which may be because Alberta has a strong public health approach to dealing with people who are “unwilling or unable” to prevent the spread of HIV. This means that people are more likely to face pubic health interventions than to face the courts. As a result, using the guidelines provided by the Public Health Act may be the best way to avoid any kind of problems.

Until we have a shift in criminal law or public health policy, the best defence for people living with HIV will remain a proactive approach to ensuring you disclose your status, document the process and reduce the risk of HIV transmission through practicing safer sex and drug use.

Sources:

• Bernard, Edwin J. (2008). Swiss experts say individuals with undetectable viral load and no STI cannot transmit HIV during sex. http://www.aidsmap.com/en/news/4E9D555B-18FB-4D56-B912-2C28AFCCD36B.asp Retrieved November 2008.

• Study Says Swiss Commission Advice may See HIV Infection Quadrupling http://www.medindia.net/news/Study-Says-Swiss-Commission-Advice-may-See-HIV-Infection-Quadrupling-40023-1.htm Retrieved November 2008.

• Swiss guidelines take a troubling turn. http://www.catie.ca/catienews.nsf/news/A2EFD4077BD44FB285257405005EE5EF?OpenDocument Retrieved November 2008.

• Canadian AIDS Treatment Information Exchange, the Canadian HIV/AIDS Legal Network and AIDS Calgary. HIV Disclosure, Criminal Law and Public Health Community Forum Power Point Presentation. March 2009.