Sex, lies and legal red tape

More than 90 HIV/AIDS professionals gathered in downtown Vancouver, Mar 22, to examine how law enforcement and public health organizations deal with the disclosure of HIV status.

“The idea originally came out of a concern about the seemingly increasing criminalization of people living with HIV disease,” says William Booth, executive director of AIDS Vancouver and conference moderator. “It seemed to me that this issue was so emotional–some of us are the good guys and some of us are the bad guys–when, of course, it’s much more nuanced than that.”

The conference, entitled Sex, Lies, and Legal Red Tape, included representatives from the Vancouver Police Department (VPD), Vancouver Coastal Health, The British Columbia Centre for Disease Control, The BC Civil Liberties Association, and virtually every social organization and society that works with people living with HIV in the Lower Mainland. There was, however, no representative from the BC Ministry of Attorney General, which prosecutes disclosure cases.

The criminal laws surrounding HIV disclosure among sex partners, how police investigate non-disclosure allegations, and the role played by public health authorities is a topic of increasing debate.

Among the contentious issues is the practice by police services across the country of issuing press releases that reveal the HIV-positive status of those suspected of failing to disclose their serostatus to partners before having unprotected sex.

On Mar 30, 2006, for example, the VPD issued a press release seeking “further information” on a Vancouver man who, they allege, lied about his HIV-positive status before having unprotected sex with two men. The accused’s lawyer told Xtra West that the man had already cooperated fully with the VPD. Nevertheless, the mainstream press picked up the story and ran the man’s name and picture.

“Why do we have [cases like these] on the front page of the newspaper when the police could take it to public health; an entire organization that has history and expertise devoted to this issue?” asked Michael Vonn, policy director of the BC Civil Liberties Association.

Health officers have powers to track and notify those who may have had unprotected sex with someone who is HIV-positive. They can also detain or isolate those who are simply in denial about their positive status, or who can’t manage their HIV because of coincidental mental health issues or addiction.

Why do police see the need to resort to wanted posters?

“You have to go out and make sure the people who might have been infected have a chance to seek medical help and take a cocktail that may prevent them from getting a disease that can kill them,” said Tim Houchen, VPD detective. “Would you do it to save one person’s life? The answer is yes you would.”

“Is there any discussion or protocol between public health and police about trying to go first to public health and interview in a more private, discrete and focused way rather than just going right to bring out the big guns of media releases from police?” asked Richard Elliott, deputy director of the Canadian HIV/AIDS Legal Network.

“There is no protocol,” said Dr Patricia Daly of Vancouver Coastal Health. “But at least two cases of the three that have gone to court did come to public health first… In those situations the complainant wanted to go forward with criminal charges. It had nothing to do with us; we did not facilitate that.”

Daly told the crowd that she has never issued an order of detention or compliance against someone because of their HIV-positive status and likely never would. She explained that public health nurses develop trusting relationships with the people they serve. If those nurses worked with police, or issued orders to detain or compel HIV-positive clients, she said, those clients would be less likely to seek support.

“The reason why I’ve said I’ll never do this is that I think it undermines our ability to practice good public health,” she explained. “I don’t want to have us working with police on this because I think it undermines what we try to do.”

Xtra West asked Houchen during a break if the VPD had similar reservations about working with public health officials. He said that the VPD does have an “arm’s-length relationship” with Vancouver Coastal Health, but that there is no arrangement between the two organizations for dealing with HIV investigations.

“They say, ‘You need a warrant for us to give you health information, but you can tell us information and we’ll use it within our organization,'” Houchen says.

So, Vancouver Coastal Health doesn’t plan to work with the VPD, the VPD doesn’t plan to work with Vancouver Costal Health, and both groups say they’re making choices in order to protect the public. Meanwhile, as the criminalization of HIV and the stigma against those who are HIV-positive gets stronger in law and in the media, more people are living with the disease every year.

What is the solution?

“We would need decisions from the courts or lawmakers that say, ‘This isn’t happening anymore,'” says Houchen. “Until that happens, we have a duty to investigate.”

“I’m not sure that there is one solution,” Booth told Xtra West. “I think there are a number of different things that we can try. I think one thing that was very helpful was to hear the police speak from their perspective on how they understand the disease. Their understanding of the disease is much different from mine. We’re hearing that there are some pretty major gaps in how this issue is understood by different people. If we’re going to address this issue, we need to understand each other.”