2 min

Experts claim criminal law overused against Canadians with HIV

Undetectable viral load poses 'negligible' transmission risk: doctors

Criminal law is being used too broadly against people living with HIV in Canada because of a poor understanding of how the virus is transmitted, Canadian scientists say in a consensus statement.

More than 70 HIV physicians and medical researchers and the Association of Medical Microbiology and Infectious Disease Canada endorse the statement that says incorrect interpretation of the science about HIV transmission may lead to miscarriages of justice.

According to the scientists, HIV is difficult to transmit sexually. Particularly in cases where a condom is used, or an HIV-positive person is taking effective antiretroviral therapy, the scientists say the likelihood of HIV transmission is “negligible.”

“The per-act possibility of HIV transmission through sex, biting or spitting is described along a continuum from low possibility, to negligible possibility, to no possibility of transmission,” the statement notes. “This possibility takes into account the impact of factors such as the type of sexual acts, condom use, antiretroviral therapy and viral load. Dramatic advances in HIV therapy have transformed HIV infection into a chronic manageable condition.”

While scientists note that some sexual acts are particularly challenging to study, and interpreting research related to sexual transmission of HIV is complex, they say there is “broad consensus within the scientific and medical communities based on more than three decades of research.”

“This Consensus Statement represents our personal, professional and ethical responsibility to prevent any possible miscarriages of justice and remove barriers to public health efforts in Canada,” says co-author Dr Mark Tyndall.

Researchers are careful to point out that the statement is not meant to cover HIV transmission at a population level as it pertains to prevention efforts, nor is it to be used in a public health environment.

A number of advocacy groups — the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), La Coalition des organismes communautaires québécois de lutte contre le VIH/sida (COCQ-SIDA) and the Ontario Working Group on Criminal Law and HIV Exposure — hailed the statement, saying it sends a “strong message” to prosecutors and judges about the need for restraint.

“Scientists’ assessment of the evidence supports our longstanding call for, at most, an extremely limited use of the criminal law,” the groups say. “Among other things, the science supports the position that people who practice safer sex (eg, by using a condom) or who are under effective antiretroviral therapy should not be prosecuted or convicted for HIV non-disclosure.”

They add, “We expressed our deep disappointment with the decisions of the Supreme Court of Canada in the cases of R v Mabior and R v DC. Under these rulings, people living with HIV can be sent to jail and registered as sexual offenders for life for not disclosing their status even if they have used a condom or had an undetectable or low viral load, had no intent to harm and indeed did not transmit HIV. We characterized these decisions as being unfair, harmful to both individual and public health, and at odds with the science.”