HIV - Trading a Death Sentence for a Life Sentence Part 3

The past two instalments of this blog have detailed Criminal law related to HIV disclosure in Canada and how this law contributes to increasing stigma and HIV transmission. This instalment will focus on how people living with HIV can protect themselves from criminal prosecution.

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 their “informed consent” to engage in the activity. In order to give their “informed consent”, people must understand what they are consenting to. Given these legal requirements, there are several steps people living with HIV can take to make sure they stay clear of the law:

1. Communicate clearly with sexual partners and avoid using language that might be confusing such as “poz” or “positive”. It is best to state “I am HIV positive” or “I am infected with HIV”.
2. Ensure that sexual partners understands what it means to be HIV positive, and educate them on important facts. (i.e. HIV is the virus that causes AIDS, there is no cure for HIV and HIV can be transmitted through sexual activities)
3. Consider whether your sexual partner is in a state of mind where they can understand what you are saying and make informed choices. If they are heavily under the influence of drugs or alcohol, their ability to provide informed consent may be questionable and if they can’t remember that they gave consent at all then you could have a problem on your hands later!

Unfortunately, even if you take these steps to educate your sexual partners to make informed choices, there is still some risk that later they could deny that you told them your HIV status. Increasingly, people living with HIV are developing strategies to gather evidence or proof that they disclosed their status to protect themselves from false accusations. Some ideas include:

• Having a witness present when you disclose your status
• Double checking with the person to ensure that they have understood
• Saving any written records you have (e.g. e-mails, online conversations)
• Talking to your counsellor to create a record documenting your disclosure
• Signing a document or contract with your sexual partner sign detailing your disclosure and their understanding of risk.

Recently one person living with HIV suggested they have gone so far as to save the condoms they used when they had sex so that later they could prove they had protected sex. While some of these strategies might seem extreme, and certainly could take some of the fun and spontaneity out of hooking up, at least they provide some options to make sure people don’t face problems down the road.

The other key thing people living with HIV can do to protect themselves is to reduce the risk of passing on their HIV. While the criminal law is unclear on what the rules are, the Alberta Public Health Act leaves no doubt. It states that people living with HIV must not engage in activities that can transmit disease and that they must always wear condoms for any penetrative sexual activity (vaginal, anal or oral). Also, people must always disclose their HIV status to their partners before engaging in any penetrative sexual or drug-sharing activity and cannot donate blood, semen, tissues or organs.

The penalties for violating Alberta Public Health law are not as grave as those under criminal law, but include interventions such as public health orders requiring counselling and limiting sexual activities and isolation orders subjecting people to “house arrest”. To date in Alberta we have seen very few criminal prosecutions of people living with HIV, which may be because Alberta has a strong public health approach to dealing with people who are “unwilling or unable” to prevent the spread of HIV. This means that people are more likely to face pubic health interventions than to face the courts. As a result, using the guidelines provided by the Public Health Act may be the best way to avoid any kind of problems.

Until we have a shift in criminal law or public health policy, the best defence for people living with HIV will remain a proactive approach to ensuring you disclose your status, document the process and reduce the risk of HIV transmission through practicing safer sex and drug use.

Sources: Canadian AIDS Treatment Information Exchange, the Canadian HIV/AIDS Legal Network and AIDS Calgary. HIV Disclosure, Criminal Law and Public Health Community Forum Power Point Presentation. March 2009.