HIV criminalization is the biggest block to prevention

The HIV epidemic has undergone a massive evolution in the last three decades. But as the science of treatment and prevention has gone one way, the law has gone another.

Tests are quicker and easier, treatments more effective and simpler to take. We know more about how to prevent HIV, and many people — including many gay men and other men who have sex with men — are using this knowledge to make sophisticated decisions about their sexual health and risk-taking behaviours.

Yet the law is not keeping up and is causing more harm than it prevents.

As a newcomer to Canada, I am dismayed by the impact the law is having on HIV. Granted, the tension between the HIV response and criminal law is a global issue, but the fear of criminalization is very visible in this city.

Posters and brochures about criminalization and disclosure dominate sexual health clinic waiting rooms here, making what can be a stressful test a frightening one; people living with HIV need to understand complicated and vague legal distinctions when negotiating sex and are even advised to have witnesses to HIV disclosure. I am no longer surprised when I come across individuals who, fearful of clinical staff or of their medical records being used against them in court, put off necessary HIV treatment, viral monitoring tests or even diagnosis. What sort of world are we living in?

To be clear, I am talking about people who, like the vast majority of people living with HIV who know of their status, would be devastated to pass on HIV to a sexual partner and take careful precautions to prevent its transmission. Instances where people living with HIV deliberately or recklessly infect others are very rare, and there is sufficient legislation to protect the community in these cases. I fear that the majority of cases currently before the courts do not fall in this category.

Unfortunately, most people living with HIV know all too well the risks of stigma, discrimination and violence associated with HIV transmission. When the risks of disclosure are so high and the risks of transmission are so low, disclosing to a new acquaintance is irrational — and yet that is what the law criminalizes. Those charged are often marginalized individuals, victims of unintended miscommunications or accidents, stigma or retribution. The criminal system tears lives apart and exposes all the messy, personal and intimate details for the front pages of the newspapers.

People at risk of infecting others need support and counselling to enable them to disclose and reduce the risk of transmission. We need to be working with these people and not turning them away. Concerned individuals and organizations in Ottawa have been working to develop protocols so that each public health official, clinician and AIDS service worker knows what his or her role is in a well-supported and confidential public health system to assist people living with HIV who are not able to manage the risk of HIV transmission on their own. What we are still lacking is the support of the law and law enforcement to make these protocols effective.


We also need a shift in community attitudes. Both partners in a sexual relationship have a responsibility to protect themselves and each other from HIV and STI transmission. Given that 30 percent of people living with HIV in Canada are not aware of their status, we should all take the personal responsibility of being informed and educated on HIV and STI transmission risk factors. When we have a shared responsibility for prevention, criminalization of one party is not an appropriate response.

In the meantime, I will be among many involved in the HIV response in Canada carefully following the outcome of the two cases currently before the Supreme Court. We will be hoping for the end of the reign of fear and stigma that is undermining HIV prevention and treatment.

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