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Finding a way out of the HIV criminalization loop

No effective legal solution in sight

BUMP & GRIND. Reversing the tide of HIV prosecutions will be no easy feat. It will involve a significant injection of cash and resources into the public health infrastructure, alongside a moratorium on HIV-related criminal charges.

“The problem is, we try to solve a lot of social problems though the courts,” says Mark Ertel, president of the Defence Counsel Association of Ottawa.

“It’s similar, in a way, to [the] way that they’ve treated drugs — they made it into a big criminal problem, and they have to enforce it, and now there’s no money for treating people or educating people or anything else. The same thing goes for HIV.”

Activists agree that the current legal framework for addressing HIV transmission is untenable. The charges have ballooned from nuisance to first-degree murder over the course of 15 years. At the same time, it’s become less and less clear what’s safe to do without ending up on the wrong side of the law. Sex without disclosing your HIV status but with a condom? What about lower-risk activities? How does viral load effect the equation?

That’s partly because public health agencies (both federal and provincial) have dropped the ball, says Barry Adam, senior scientist and director of prevention research with the Ontario HIV Treatment Network. That’s left a policy vacuum when it comes to dealing with new infections, especially when there’s a perception that an HIV-positive person has acted unfairly.

“To some degree, I think the courts have moved into that territory because other organizations haven’t really been covering it off that well. Both AIDS service organizations and public health [agencies] haven’t had very clear ideas or policies about what to do themselves. So you end up having individuals running off to the courts, and the courts render judgments.”

To date, interactions between public health agencies and the law haven’t been productive. Adam cites the fact that civil suits are being launched against poz people — and some of these cases find that public health authorities and the police are not notifying the press rapidly enough to warn the public about perceived HIV “predators”.

“If we end up with case law that demands that public health jump to the newspapers and put people’s pictures in right away, before they’ve been charged or convicted of anything, then I think we’re in a whole other very worrisome world of potentially smearing anyone who’s HIV positive,” Adam says. “There’s no recourse. You haven’t even had your day in court yet but you’ve had your picture in the papers.”

It’s clear that both legislators and the police need to step back to see the broader picture. In fact, many AIDS activists think the problem should be addressed at a different level entirely — through education that starts at the primary level, and by focussing on the social determinants of health, such as ensuring that people have proper housing.

“We talk about condoms, we talk about clean needles, but we don’t talk about how stigma fosters HIV transmission,” says Michelle Ball from the AIDS Committee of Ottawa.

Things like stigma, stress, lack of access to medication and poor nutrition all effect the risk of HIV transmission, says Ball.

“Those things are the responsibility of our government to rectify, and they’re choosing not to. They’re choosing to make HIV individually-based rather than looking at the systems in place that actually foster HIV transmission, because they don’t want to take responsibility themselves for ensuring that people [don’t] continue to get HIV.”

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So what would an effective public health intervention look like? It would have to be based on capacity building — the process of empowering newly HIV-positive people and providing support services.

It’s cleat that the courts can’t provide this. And while intervention from Parliament would likely be preferable to yet another Supreme Court decision on the criminal nature of HIV transmission, this would require that government find a way out of the HIV criminalization feedback loop and, instead, find a non-criminal form of justice that involves funding, prevention and support.

But, at the moment, even progressive MPs aren’t sold on the idea of creating legislation to address this issue.

“I am not sure whether there is an appropriate legislative solution to the criminalization of HIV, as the issue lies with how existing law is applied in cases of HIV transmission,” says Liberal MP Hedy Fry, who has spoken out on the issue of criminalization in the past. “New legislation will not change this.”

NDP MP Libby Davies fears that action on the part of Parliament could lead to new, HIV-specific criminal laws — something that nobody wants.

“The more specific you are to a particular issue, the more problematic it can be,” she says.

Davies feels that legislative options do bear discussion, but she also feels that criminalizing positive people as a result would be a terrible thing.

“It would create a lot more harm than protection of society,” says Davies.

Meanwhile, Fry supports a framework that sets out the minimum standards that have to be met before laying a criminal charge. This would help prosecutors and police stay out of some problematic legal areas. In the UK, for instance, prosecutorial guidelines state that HIV-exposure is only criminal if two criteria are met: there is intent to harm, and transmission of HIV actually occurs.

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Some feel that such clarity would be useful for HIV-positive folks and their lovers. In fact, the Canadian HIV establishment is quietly moving toward advocating for the establishment of such rules and away from their previous position that the criminal justice system has no place in what is, essentially, a health issue.

“We need prosecutorial guidelines,” says Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network. “We need something that tells prosecutors and police officers when [it is] actually appropriate to be laying charges, and what charges should [be laid]. That way, the law would be applied more fairly and more appropriately.”

However, groups like the Canadian HIV/AIDS Legal Network do believe that the current situation is untenable. Canadians can’t easily discern whether their day-to-day actions (or those of their partners) are legal, leading to situations where poz people are vulnerable to threats and even blackmail by their sexual partners.

“They’re very emotional and tricky cases — police don’t have that kind of guidelines and training on what is the best way to use this law,” says Symington. “Different prosecutors and police officers are using their own [personal] judgment, which is what they do, but they don’t all have a great analysis of HIV and HIV transmission.”

Isabel Grant, a law professor at the University of British Columbia, says that, even after the police get involved, the law is often applied unequally.

“You could have anything from simple assault or nuisance in one jurisdiction to first-degree murder in another for exactly the same conduct,” she says. “There’s a problem with that.”

But, when it comes down to it, how effective would prosecutorial guidelines actually be in reversing the issues we now face? The establishment of such a framework doesn’t do anything to stop the courts from intervening as they see fit — in fact, it facilitates their involvement. And, even if such a framework were adopted, it wouldn’t necessarily be followed.

“The problem with prosecutorial guidelines is they’re not binding — nobody has to follow them,” Grant says.

Obviously, this is a subject that requires in-depth analysis and broad-based consultation if we are to find an effective solution. Enter the Ontario HIV Treatment Network, which is funding a one-year project to develop a whitepaper on the legal responses to HIV exposure. The group aims to have a report available by the end of summer 2010.

“[The paper] will review the cases that are happening in Ontario and do some comparative analysis across the country both in terms of trends and comparison with other jurisdictions,” says York University professor Eric Mykhalovskiy, who is heading the project. “We’re going to look at the developments in parallel countries — primarily in Western Europe, [the] United States and Australia to see how the laws that we have in Canada compare to what’s going on in other countries. Our sense is that Canada is basically a leader in this area of the use of criminal law to address HIV exposure.”

The group then plans to review the various forms of research in the field — legal, social science, public health and medical — to explore the assumptions and key issues related to criminalization, including clarifying the test of “significant risk of serious bodily harm.”

While the process won’t lead to actual guidelines, and decisions have yet to be made as to the study’s level of detail and what the eventual guidelines might look like, the research team nevertheless hopes the resulting paper will be instructive to police and Crown prosecutors.

While it’s true that prosecutorial guidelines would solve some of the issues mentioned here by providing clarity of legal direction, they don’t get at the underlying problem — that HIV transmission is a public health concern, not something that the criminal justice system can or will stop. At best, guidelines are a stopgap solution, helping to resolve the most egregious abuses of the system by those with the power to do so.

Meanwhile, AIDS groups that put their stamp of approval on prosecutorial guidelines may unwittingly be contributing to the criminalization problem. After all, painting HIV prevention as the sole burden of poz people does not speak to the responsibility of negative folks to keep themselves safe.

Which leads us to one of the most counterproductive consequences of criminal intervention: it makes it harder for poz folks to disclose their status to partners — or even get tested in the first place.

Reversing the tide of HIV prosecutions will not be an easy feat. It will involve a significant injection of cash and resources into the public health infrastructure, in tandem with a moratorium on HIV-related criminal charges. Politicians will need to educate themselves about the effects of court intervention, which include increased fear and stigma for poz people, and then advocate for a profound shift in direction.

The sole, viable solution here is one based in public health initiatives, which will require political willpower to move in a new direction and a dedicated lobby effort to keep up the momentum. Are we up for the task?