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Chinese students show a handmade red ribbon one day ahead of the the World AIDS Day, at a school in Hanshan, east China's Anhui province on November 30, 2009. (STR/AFP/Getty Images)
Chinese students show a handmade red ribbon one day ahead of the the World AIDS Day, at a school in Hanshan, east China's Anhui province on November 30, 2009. (STR/AFP/Getty Images)

Globe editorial

AIDS and the duty to not infect Add to ...

A new database unveiled at this week's International AIDS Conference in Vienna reveals that, aside from the U.S., Canada leads the world in prosecuting people who expose others to HIV/AIDS. To date, there have been 63 criminal convictions in Canada.

Some AIDS activists and scholars are troubled by this growing trend to criminalize transmission of the human immunodeficiency virus. Forty-five countries now have explicit laws that make transmission of HIV a crime, while other nations, including Canada, rely on existing laws.

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Critics raise a number of concerns, including a fear that criminalizing HIV exposure will infringe the rights of HIV-positive people, increase the stigma and deter those at risk from getting tested.

These arguments, however, are flawed - at least in the Canadian context. There is no evidence to suggest that people will spurn medical attention so that they can be free to act recklessly. And it only increases the stigma if Canadians believe those who are HIV-positive have no legal duty to disclose their status before having sex that poses a "significant risk" of infection.

Criminalizing the intentional transmission of HIV/AIDS is appropriate.

Disclosing one's status is, of course, a difficult and emotional journey, fraught with potentially negative consequences. HIV-positive people can be marginalized, and discriminated against in terms of housing, employment and social relationships. However, the collective rights of this minority group cannot take precedence over their individual responsibility not to infect others.

One of the most infamous cases is that of Johnson Aziga of Hamilton, Ont. He was convicted of two counts of first-degree murder for deliberately infecting two sexual partners with HIV; both women died of AIDS-related cancers. Other cases, such as that of Trevis Smith, a former Saskatchewan Roughriders linebacker, involve people who violated public health orders requiring them to disclose their HIV status to sexual partners and to use condoms.

While these cases are clear-cut, others are more ambiguous. Experts who support criminal prosecution believe that more consistent guidelines are needed. For example, should HIV-positive prisoners who spit on guards be charged? Is an infected person who engages in oral sex obliged to disclose their status, even if the risk of infection is minimal? Should HIV-positive mothers who breastfeed their newborns face charges? Or those taking anti-retrovirals who have undetectable levels of the virus in their bodies?

These questions must be addressed. The HIV/AIDS Legal Network is working with provincial attorneys-general and Crown attorneys to develop guidelines for prosecution. But in Canada the law is clear: Exposure without disclosure is a crime. And that is a good thing.

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