HIV is more than an illness, it is a physical, psychological and social condition. No longer a “death sentence”, sometimes people call it chronic and manageable given the new medications that have been created. But, between taking piles of pills each day, experiencing grave side effects and being brutalized by the stigma attached to the illness, many people living with HIV balk at this idea of manageability and see HIV as a sentence of a different kind. And now, with the dramatic increase in the number of criminal prosecutions of people living with HIV, the sentence might actually be life behind bars.
Based on Supreme Court of Canada decisions, Canadian criminal law requires people living with HIV to disclose their HIV status before engaging in any risk activity that may present a “significant risk” of passing on HIV so that their partner can provide “informed consent” to engage in the activity. If they fail to tell their sex partner their status, they can be charged with serious offences like sexual assault, aggravated assault, criminal negligence or murder. Charges can be laid even if they do not pass on HIV to their partner.
While the law is clear that unprotected vaginal and anal sex constitute significant risk, it remains unclear whether activities such as sex with a condom, oral sex or other activities pose a high enough risk to be considered “significant”. While we know that factors such as HIV viral load, having other STIs, or being the insertive or receptive partner can influence how much risk is attached to an activity, it is also unclear how the law would interpret these factors. What is clear is that in the absence of firm guidance in these matters, courts will continue to exercise significant discretionary power in interpreting these risks and people living with HIV will continue to live in an uncertain environment unsure of what is required of them.
This is particularly alarming as courts in the US have demonstrated an inability to discern real risk from imagined risk, as demonstrated in a recent case where a homeless man living with HIV who spit on a police officer was sentenced to 35 years because the jury felt that his spit was a “deadly weapon” despite the lack of any scientific evidence that HIV can be spread through spit. It is unrealistic to think that police, prosecutors and judges are experts in HIV transmission or immune from misconceptions and fears about HIV. Likewise, as these cases often involve lawyers appointed through legal aid who have very little time to devote to building a case, even the defence attorneys may not have time to gather the necessary information.
But the real tragedy is that this criminalization of HIV does little to address the real issue. If the goal of criminalizing HIV is to reduce its spread, then from a public health perspective the strategy has totally missed its mark! See next week’s blog for the big picture on how criminalization may actually contribute to HIV transmission.
Sources:
Bernard, Edwin J. (2008) Texas jury concludes saliva of HIV-positive man a ‘deadly weapon’, sentenced to 35 yrs jail http://www.aidsmap.com/en/news/57E118E4-CC57-4C0E-A200-E7709A67AF1F.aspRetrieved June 2009
Ontario Working Group on Criminal Law and HIV Exposure. (2009) The Impact of Criminalization on the AIDS Epidemic in Canada: Media Speaking Points January http://www.cdnaids.ca/web/mailouts.nsf/pages/cas-mailout-0588 Retrieved June 2009
3 comments:
Can anyone who is HIV+ actually in good conscience advise anyone to test for HIV when such a climate exists?
Ignorance might far exceed bliss if it keeps someone out of prison!
"Good conscience" is such an interesting phrase to use in the context of HIV or other sexually-transmitted infections.... if I had any of these, my good conscience would guide me to help prevent anyone else from getting these infections, and if advising someone to get tested is the way... then I would do that. HIV/AIDS is for many people a manageable long-term health condition, but if you ask a positive person if they wanted to have it, chances are they would answer, "Not!". We all have responsibility to protect ourselves and each other.
Thank you for your comments. This is a very sticky issue, to be sure, and you both raise valid points.
Fear of criminal prosecution may indeed be enough to make people wary of testing. As you say, ignorance is bliss.
This is the first in a three part series. In the second part (posted today) we talk about whether the criminilization of HIV has actually done more to spread HIV than to prevent transmission.
On the other hand, Jeff makes a great arguement for personal responsibility.
Thank you both for weighing in with your opinions!
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