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HIV outing tramples privacy rights

Critics challenge RCMP's exposure of athlete's HIV-positive status

HIV is front-page news across Canada after Surrey RCMP recently publicized the positive status of a CFL football player charged with aggravated sexual assault.

An Oct 28 Surrey RCMP news release — triggering 180 stories throughout North America in a single day — included the following note: “Normally the RCMP would not disclose the medical health status of a person. However, in this case, the RCMP would like to issue a public warning as Trevis smith is HIV-positive.”

An RCMP spokesperson later explained that a public warning about Smith’s health status was necessary for public safety. Const Marc Searle told Xtra West Nov 16 that police could not comment further on the case while it was before the courts.

The law on disclosing one’s HIV-positive status to sex partners is clear. The Supreme Court of Canada ruled in a September 1998 case involving BC resident Henry Cuerrier that people with HIV/AIDS who engage in insertive, unprotected vaginal or anal intercourse without prior disclosure to their partners may be convicted of aggravated assault, if charged.

But the police decision to issue a cross-Canada public health warning before Smith has even been tried in court is being widely condemned in HIV and human rights circles.

“Police sent the wrong message,” says Canadian HIV/AIDS Legal Network analyst Glenn Betteridge. “In this day and age, when the AIDS epidemic has been with us for 20 years, everyone needs to take care of their own sexual health.”

“Even if you claim a right for this type of intervention, what on earth makes you go immediately to nationwide exposure?” asks BC Civil Liberties Association director Micheal Vonn. “I swear to God. Who runs around believing that you have an ability to sleep with anybody without the potential for harm unless police protect you?

“We’ve spent decades trying to ensure people have confidence in their ability to test for HIV in a system that will protect privacy. This flies in the face of this,” she continues.

“We are not confident police have the expertise to weigh the competing rights,” Vonn adds.

Vancouver lawyer Ken Smith is also concerned by the police decision but concedes it’s a complex matter. “How do you weigh the privacy rights of an individual against the need to protect the public?” he asks.

But, Smith says, police should always act to protect privacy rights, if there is a grey area.

“The cross-Canada warning wasn’t necessary,” says BC Persons with AIDS Society Chair Paul Lewand. “He was in custody and wasn’t an immediate danger to anyone.”

“Surely the presumption of innocence should include the right not to have your life broadcast from sea to shining sea,” adds lawyer barbara findlay.

“This kind of police intervention won’t help get the message out that everyone should be practicing safe sex at all times,” notes Burnaby-Douglas MP Bill Siksay.

Vonn, Lewand and others also expressed concern about the news reporting surrounding the Smith case, describing it as dated and reminiscent of an earlier era when there was much more ignorance about HIV and AIDS.

“I felt like it was 1985 all over again,” says Vonn.

In a Nov 2 column published on the Vancouver Sun’s front page, Cam Cole argued that the football team’s management, aware for a year of Smith’s status, should have issued a public warning.

Described as “odious” by Lewand and “inflammatory” by lawyer Smith, Cole’s column notes: “It’s like having a convicted child molester move into your neighbourhood. Would you rather know he’s around… even at the risk of his rights?”

The Toronto Star’s Richard Griffin points out that the treatment given another athlete charged with sexual assault not related to HIV was far different.

“For precedent, one need only look back as far as Kobe Bryant,” writes Griffin of the basketball star accused of sexual assault. “Not only did Bryant make it back to the basketball court as soon as he was ready, the team’s owner loaned him his private jet to get back and forth during the trial.”

Smith, who denies the aggravated sexual assault charge, was granted $10,000 bail at a Nov 2 hearing in Surrey Provincial Court. His trial is set to start May 1.

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THE LAW ON HIV EXPOSURE

“If you are HIV-positive, the law puts the onus on you to disclose. It’s not a simple or easy issue, but you’re saddled with it.”
— Paul Lewand, BC Persons With AIDS Society (BCPWA) chair.

three major decisions over the last several years have had significant ramifications on the legalities surrounding disclosure of HIV status. Two of the decisions involve Canadian criminal law and the third is a BC law making HIV a reportable disease under the Health Act.

September 1998: The Supreme Court of Canada Cuerrier decision says: People with HIV/AIDS who engage in insertive, unprotected vaginal or anal intercourse without prior disclosure of their HIV-positive status to their partner(s) may be convicted of aggravated assault if charged.

September 2003: The Supreme Court of Canada Williams decision says: HIV-positive persons who have unprotected sex without disclosing their status to a sexual partner who may already have been infected with the virus can be convicted only of attempted aggravated sexual assault and not aggravated assault.

May 2003: HIV becomes a reportable disease in every province in Canada.

In BC, HIV is a reportable condition under the Health Act as are many other diseases, including syphilis and the West Nile virus.

That means that persons testing positive in BC can either notify their sexual partners themselves or ask a public health nurse to do it anonymously. But their partners must be notified.

If there is evidence that someone with HIV has not informed their partner, or if there is evidence that a person with HIV is involved in unprotected sexual practices, the medical health officer may intervene, but such interventions in BC are reportedly extremely rare.

Although AIDS has been a reportable disease in BC since 1983, there was resistance to making HIV a reportable disease, based on the sensitivity of the government having records on people.

The July 2003 edition of living+ magazine quoted the late BCPWA chair Glen Hillson on his concerns regarding HIV becoming reportable. “It will dramatically discourage and dissuade people from getting tested for HIV,” he said.

But Dr Michael Rekart of the Center For Disease Control says independent evaluations have demonstrated that testing rates are up. Signficant fines are in place to prohibit confidentiality breaches by health care professionals concerning identifying HIV positive individuals.

Rekart forcefully defends confidentiality policies, noting that HIV/AIDS information is beyond the reach of even police, unless a warrant is issued by a judge in a criminal matter.

“In my 21 years in this office, we have released information in response to a criminal warrant only one time,” says Rekart, adding that he can’t remember the details of that case dated years ago. He says the centre has denied several other police medical record requests because a warrant wasn’t issued.