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Criminalization biggest threat to HIV prevention, conference hears

'This is not something we should be throwing the book at': Elliott

"We have sex and we have all the charged issues and no one wants to talk about this. The court decisions only aggravate this," said Glyn Townson of Positive Living BC. Credit: Matt Mills photo

Criminalizing the nondisclosure of HIV status prior to sex could have a stigmatizing effect on the queer community and defeat health initiatives aimed at slowing the spread of the disease, a Vancouver conference heard Oct 12.

“The issue of criminalization is probably the biggest threat to HIV prevention we’re facing right now,” Dr Mark Tyndall, head of infectious diseases at Ottawa Hospital, said. The threat of prosecution for nondisclosure can include stigmatization, people not getting tested, HIV people being less willing to disclose out of fear, the encouragement of greater anonymous sex and an increase of sexual transmission in jails, he elaborated.

“Criminal prosecutions are proceeding in a legal vacuum,” Tyndall added, pointing out the irony that courts are evidence-driven yet have no evidence to show that criminalization works.

“Criminalizing HIV disclosure and other matters makes my life miserable and makes my patients’ lives miserable,” leading HIV researcher and former International AIDS Society president Julio Montaner told the Criminalization of HIV Non-Disclosure: Science and the Law seminar.

While use of antiretrovirals has converted what used to be a fatal disease into a manageable condition, HIV is once again being discriminated against and stigmatized because of a lack of understanding and a lack of will to control it, Montaner said. “The political will is not there at the federal level,” he said. “They don’t know or they don’t care.”

It is clear that treatment is the best way to handle morbidity, mortality and transmission, Montaner emphasized. “What part of this don’t people get?” he asked.

Canadian HIV/AIDS Legal Network executive director Richard Elliott said much of the legal case volume around the issue stems from the 1998 Supreme Court of Canada’s R vs Cuerrier ruling, which stated that a positive person can be convicted of aggravated sexual assault for not disclosing his or her serostatus to sex partners before engaging in an activity representing a significant risk of HIV transmission.

Since then, he said, courts across Canada have seen an increase in such cases. “It’s about the risk of transmission,” Elliott said, explaining the prosecution has to show a link between nondisclosure of what caused harm and a refusal to have sex had it been disclosed.

He noted that the Cuerrier decision indicated that “the careful use of condoms might be found to reduce the risk of harm that it could no longer be significant.” It has to be unprotected sex before the Criminal Code is going to step in, Elliott added.

But BC Crown counsel Janet Dickie said that when cases come up that are at the far end of the scale of egregiousness, the Crown must prosecute, citing the case of Adrian Nduwayo, who was convicted of numerous sexual assault counts. She said the straight man knew he was positive, had been counselled repeatedly, yet still had sex with multiple partners.

“That kind of behaviour is totally heinous,” she said. “We’re there to protect peoples’ sexual integrity, which I say is enshrined in Section 7 of the Charter (life, liberty and security of the person).” In Nduwayo’s case, Dickie said she never considered going below aggravated sexual assault.

Justice James Williams ruled the women would likely not have consented to sex had they known Nduwayo’s status and was satisfied the women’s lives were endangered by his actions.

Lawyer Jason Gratl has been defence counsel in criminalization cases.

He said there have been problems with a lack of knowledge among police about how HIV can be transmitted. He said that is compounded when a person’s identity is disclosed.

Elliott said things become more complex when people begin wanting charges laid in cases of biting or spitting.

“This is not something we should be throwing the book at,” he said. “What we are seeing is an over-exaggerated version of HIV panic.” Further, media coverage of such cases exacerbates the stigma around HIV, he added.

“We have to live with that,” said Glyn Townson of Positive Living BC. “We have sex and we have all the charged issues and no one wants to talk about this,” he noted. “The court decisions only aggravate this.”

“People, when they find out they’re HIV positive, change their behaviour,” Townson said. “We can’t reach them if they’re not getting tested.”

In order to deal with the issue, the Legal Network has developed policy guideline suggestions for the Ontario attorney general’s office. Suggestions include not treating nondisclosure cases in the same way as sexual assaults and assaults involving force, coercion or violence.

“They should also maybe consider laying lesser charges,” said policy analyst C├ęcile Kazatchkine. “If someone is convicted of a sexual offence, they may be registered as a sex offender for life.”