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Halting spread of HIV demands mix of law, health policy

Peter McKnight is an adjunct professor, School of Criminology, Simon Fraser University.

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"Ignorance," English poet Thomas Gray wrote, "is bliss." While those famous words were written in 1742, he could well have been describing the legal environment of the 21st century.

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Actor Charlie Sheen certainly thinks so. In a recent television interview, he announced he is HIV-positive and that he had kept his HIV status secret for several years for fear of facing legal ramifications.

Time will tell if Mr. Sheen was wise to keep the world in the dark, but the law, particularly in Canada, does seem to reward people for remaining ignorant about their HIV status. Canadians living with the virus that causes AIDS can be charged with, and convicted of, aggravated sexual assault – the most serious form of sexual assault – if they fail to reveal their HIV status to their sexual partners.

Furthermore, it doesn't matter whether the accused intended to transmit the virus or if the virus was, in fact, transmitted: Simple failure to disclose one's HIV status is enough for conviction if, according to the Supreme Court of Canada, there existed a "realistic possibility" of transmission of HIV. The court's decision has permitted Canada to continue its role as a world leader in prosecuting people for failing to disclose their HIV status. More than 150 Canadians have been charged since 1998, with some spending time in jail and others spending a lifetime on the sex-offender registry.

You might think this is a sensible way to deal with HIV non-disclosure. The law, after all, ought to protect vulnerable people from individuals who place them in harm's way, and the threat of serious legal sanction might deter those who recklessly endanger the health of others.

But ignorance, remember, is bliss. And that, unfortunately, is nowhere more true than in a court of law. Want to shield yourself from the threat of criminal prosecution for spreading HIV? Then don't get tested for the virus, since it's unlikely that a court would or could convict an individual who is unaware of his or her HIV status.

The law therefore discourages HIV testing, a particularly disquieting development since an estimated 25 per cent of Canadians living with the human immunodeficiency virus are unaware of their status. Worse, if people aren't tested, they will not seek treatment. That can prove catastrophic not only for them, but also for the community, since anti-retroviral therapy can significantly decreases the risk of HIV transmission.

The law's effect, then, is the exact opposite of its intent: Instead of protecting vulnerable Canadians, the law makes everyone more vulnerable to infection.

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Clearly, criminal law is simply too blunt to apply to what is, at root, a public health matter. Fortunately, that blunt instrument can be sharpened. Better yet, the law is not the only way to address the issue of HIV non-disclosure.

Under Canadian law, Canadian police and prosecutors may charge anyone who fails to disclose his or her HIV status, but they do not have to do so. Rather, they can limit charges to particularly egregious cases, such as those involving intentional transmission of HIV. The Global Commission on HIV and the Law, the Joint United Nations Programme on HIV/AIDS and the United Nations Development Program all support this approach, and several jurisdictions, including England and Scotland, have issued guidelines limiting prosecutions for HIV non-disclosure.

Of course, this doesn't address what to do about those who unintentionally expose someone to HIV. But this can be handled through a public-health approach, which can be far more nuanced than criminal law. Public-health agencies can investigate why some people resist disclosing their HIV status (women in abusive relationships who might fear a violent reaction, for example) and offer them counselling and support. If necessary, health authorities can implement a graduated response by issuing orders of increasing severity, from mandated treatment, to prohibiting specific behaviours, to apprehension and detention.

If we are serious about addressing HIV non-disclosure, we will utilize all of these tools, and all of our knowledge, rather than relying solely on the criminal law. Ignorance might be bliss in our body of law, but for the body politic, it's potentially fatal.

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