In August 2004 a woman approached the Toronto police’s Sex Crimes Unit, alleging that she contracted HIV from a man who failed to tell her that he knew he was HIV-positive before the two had unprotected sex. The man was convicted of two counts of aggravated sexual assault and sentenced last year to 58 months in prison.
According to Toronto police staff superintendent Rick Gauthier, the case was the first of its kind for the force and investigators initially didn’t know how to proceed.
“In order to prove a case you have to prove that the person knew he had HIV and was reckless in having sex,” he says. “In order to prove that you have to access medical records.”
Gauthier says the detective on the case found a section of the Municipal Freedom of Information and Protection of Privacy Act which allows police to access medical records in such circumstances. She was able to obtain a warrant from a judge to gain access to the records of Toronto Public Health for the individual. Those records showed that public health officials met with the man and informed him of his status. The detective then obtained seven additional warrants for doctors’ offices and medical clinics which showed that other health professionals had also informed the man of his HIV-positive status.
Vinita Dubey, an associate medical officer of health with Toronto Public Health, says that the release to police of confidential medical records is extremely rare.
“A person’s personal health information is protected,” says Dubey.
She says that even someone who thinks they may have been infected by a particular sex partner cannot obtain that person’s records but that in extraordinary cases police can.
“If we are mandated by the legal system — through a warrant or some other legal proceedings — we are required to [disclose information about patients],” she says.
Joanna Csete, the executive director of the Canadian HIV/AIDS Legal Network, says that such searches and prosecutions might make people less likely to get tested for HIV.
“It might be driven underground,” she says. “Knowing their status might make them more afraid they’ll be prosecuted. Criminal law is a very blunt instrument for getting people to change their sexual behaviour. It’s time to look at whether all these prosecutions have resulted in any good.”
Csete says the public health system is a far more effective apparatus for dealing with HIV and AIDS than the criminal justice system.
“Canada has extremely good surveillance around HIV,” she says. “Our experience in following these questions is that it is a very rare person who has the intention of infecting someone. [This] seems to be the wrong case around which to design public policy because it’s so rare.”
Csete says matters are complicated further by the fact that the law doesn’t take into account questions of intent or ignorance about HIV transmission.
“The law says any act which contains significant risk of HIV transmission is illegal,” she says. “It’s about the actual clinical risk, not intent.”
Csete also says that the law has not addressed the question of whether the use of a condom means the person has no legal responsibility to inform their partners of their status. She adds that public funds would be better spent on addressing deficiencies in public health programs.
“It seems to us that the more effective measure would be to intensify education so that everyone takes responsibility,” says Csete. “The public health programs that we know are effective are not being made to reach those who most need it, especially as the human face of HIV changes more and more to drug users, aboriginals, immigrants who face racism and other prejudices.”