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Ask a Lawyer: Is Canadian HIV Law Taking a Step in the Wrong Direction?

, by Ari Ezra Waldman

[Editor's note: This post was updated on November 12, 2012.]

In Canada, as in 34 states and territories of the United States, it is considered an aggravated assault to have sex with someone without disclosing your HIV-positive status. To put that in perspective, another example of aggravated assault is attacking someone with a gun, or hitting a woman with the intent to rape. Because they are so serious, aggravated assault convictions may carry sentences of 20 years or more.

Last month, the Canadian Supreme Court ruled that the country’s HIV criminal law was only constitutional in those situations where the prosecution could prove that there was a realistic chance of transmission of the virus

That seems like a step forward, but for Canadians, it is not. It marks a step backward from a 1998 Canadian Supreme Court ruling, which held that failure to disclose vitiates, or cancels out, any consent to have sex when that sexual activity posed “a significant risk of serious bodily harm.” That means that under the old interpretation of the law, a disclosure requirement was triggered by a “significant risk.” Now, all that is needed is some provable “realistic chance” of transmission, which is lower than a “significant risk.” It is clear that it is now easier to convict HIV-positive Canadians of aggravated assault in this context.

But this marks a step forward from American law in two ways.

First, it marks a step forward from the current state of American laws criminalizing HIV transmission. As I wrote in a recent law review article, many American jurisdictions treat all those charged under these laws as “fungible” entities, with everyone capable of spreading the virus with the same probability and everyone capable of harming sexual partners in the same way. Whether someone has a high or undetectable viral load, for example, does not matter; all are presumed to bear the same criminal responsibility for attempting to spread HIV.

Second, it marks a step away from bright-line “all-or-nothing” rules that have no place in a world where scientific knowledge and medical technologies are constantly changing what it means to have HIV and be capable of transmitting it. Laws are easy to write and easy to interpret when they make simple classifications: if you drive a car, you have to buy insurance; if you are 18 years old or above, you can vote. But not everything in life is binary like an on-off switch. Although it makes sense to encourage all HIV-positive individuals, like every sexually active person in general, to engage in safer-sex practices, it does not make sense for laws to treat HIV like an on-off switch.

Laws that treat all HIV-positive persons the same, like the old Canadian law that never allowed a partner to legally consent to sex with an HIV-positive person, ignore the myriad differences within the diverse HIV-positive population and illogically make scientific advancement irrelevant to what is supposed to be a public health law. If we are going to criminalize attempted HIV transmission, those laws should adapt as changes in medicine and advances in scientific understanding of the virus teach us more about who can transmit the virus and when.

In this way, it seems like the Canadian cases, Regina v. D.C. and Regina v. Mabior, represent progress of the two-steps-forward, one-step-back variety.

The current state of HIV transmission research is quite promising. Recent studies have shown that condom use during sex with an HIV-positive partner, either insertive or receptive, minimizes the risk of transmission to exceedingly low levels. We know also that sex with someone whose viral load is undetectable carries an extremely low risk of transmission. Taking highly active antiretroviral therapy, known as HAART, furthermore, can decrease the risk of transmission by more than 90 percent. Combining these facts and practices—condom use, undetectable viral load, and HAART—makes transmission, as a matter of law, neither realistic nor probable.

That was the basic holding of D.C. and Mabior—namely, that if you combine condom use with an undetectable viral load, you cannot be convicted of assaulting your sexual partner. That marks a significant step ahead in Canada compared with the United States, where no such rule exists. But the Canadian HIV/AIDS Legal Network and other AIDS services organizations submitted an amicus, or “friend of the court,” brief arguing that either condom use or an undetectable viral load should immunize HIV-positive individuals from prosecution for a sex-related aggravated assault. After all, condom use on its own lowers the possibility of transmission to very low levels and, as such, the law should reflect that current medical reality. Plus, several provincial appellate courts had already held as much.

HIV criminalization discriminates against a diverse community and stigmatizes the entire population as presumptively bad actors. And it gets worse. Because conviction is dependent on non-disclosure of a known status, it perversely discourages people from getting tested, knowing their HIV status, and doing something about it. After all, you can’t be required to disclose what you don’t know. But keeping people in the dark about their HIV status is precisely the wrong way to address a public health epidemic. According to estimates from the San Francisco AIDS Foundation and the HIV Medicine Association, “of the 1.1 million individuals living with HIV infection in the U.S., nearly 20 percent remain undiagnosed, [and] only 37 percent are in care.” Laws that irrationally transform knowing your HIV status into criminal liability, therefore, actually hinder progress toward ending the HIV/AIDS epidemic by discouraging testing.

Instead of irrational criminal laws that make it harder to stop the spread of HIV, we need prosecutions based on the latest scientific data. We need education and outreach to at-risk communities to ensure regular testing and treatment. And we need to end the stigmatization of the HIV-positive population in law and in our public discourse. Ending the misuse of aggravated assault as a weapon against the HIV-positive community is a necessary first step.

Ari Ezra Waldman is a graduate of Harvard Law School and Harvard College. He now teaches at Brooklyn Law School and is Ph.D. candidate at Columbia University. Professor Waldman writes a weekly LGBT Law column at www.towleroad.com.

Selected Sources

Attia, S. and others. Sexual transmission of HIV according to viral load and antiretroviral therapy: systematic review and meta-analysis. AIDS 23(11):1397–1404. 2009.

Castilla, J. and others. Effectiveness of highly active antiretroviral therapy in reducing heterosexual transmission of HIV. Journal of Acquired Immune Deficiency Syndromes 40(1): 96–101. 2005.

Hughes, J. and others. Determinants of Per-Coital-Act HIV-1 Infectivity Among African HIV-1–Serodiscordant Couples. Journal of Infectious Diseases 205(3):358–65. 2012.

Waldman, A. Exceptions: The Criminal Law’s Illogical Approach to HIV-Related Aggravated Assaults. Virginia Journal of Social Policy and the Law 18(3). Spring 2011.

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