Canada's judges need to learn a little science and apply it to their rulings, especially when it comes to HIV-AIDS.
That is the essential message that emerges from a new consensus statement from the country's top infectious diseases specialists.
To date, there have been 146 people charged with criminal acts because they were infected with the human immunodeficiency virus.
Seventy-eight per cent have been convicted, despite the fact that there was no transmission in the vast majority of cases.
These crimes range from simple assault (spitting) to to aggravated assault (having sex without a condom) through to murder (infecting a sexual partner with HIV.)
In fact, Canada has the dubious distinction of being one of top 10 countries in the world for the criminalization of HIV-AIDS, right up there with serial human rights abusers like Uganda and Egypt. Only the U.S. has sent more people to prison because they have HIV-AIDS; there the absurdity knows no limits – there have been HIV-positive people sent to prison for 35 years for spitting.
Let's be clear, people with HIV-AIDS can and do commit crimes. They should be charged and prosecuted like anyone else.
However, there should not be additional sanctions because of their HIV status – unless they specifically try to infect others, which is a rarity.
People infected with the virus are not a loaded gun or a menace to society or any of those other histrionic descriptions that arise in criminal cases.
That is the nub of the issue: Prosecutors and judges cannot allow themselves to be influenced by prejudice and fallacious assumptions.
In matters sexual, lots of people can be cads and jerks; if, in addition, they are also HIV-positive, they should not be labelled criminals.
When applying the law, the courts need to respect the science. Currently, the law is out-of-date.
In 1998, the Supreme Court of Canada made a landmark ruling in the case of Henry Currier, who was charged for having unprotected sex with two women. The court ruled that a person must disclose his/her HIV status and take appropriate precautions or face charges of aggravated assault.
That led to a flurry of prosecutions, and an escalation. In 2008, Johnson Aziga was prosecuted for having unprotected sex with 11 women and infecting seven with HIV-AIDS. He was convicted of murder and labelled a dangerous offender.
In the case of Mr. Aziga there was strong evidence he deliberately caused harm so the charges and conviction were appropriate. But the highly publicized case left the unfortunate perception that all HIV-positive people are potential killers.
In the meantime, there were also some dramatic scientific advances, namely the development of antiretroviral drug cocktails that can suppress the virus and make it highly unlikely the virus will be transmitted, even during unprotected sex.
In 2012, the Supreme Court ruled on two cases, that of Clato Mabior, who had sex with nine women without telling them he was HIV-positive, and that of a Quebec woman (who, by court order, cannot be identified) who had a four-year relationship before and after telling him she was HIV-positive. In both cases, the accused were taking antiretrovirals but had unprotected sex; none of their sexual partners were infected with HIV.
The court ruled that, to escape prosecution, a person must both practice safer sex (i.e. use a condom) and take antiretroviral drugs to ensure they have a low risk of transmission.
This double-obligation is not supported by science, according to infectious disease specialists. It also does not apply to other sexually transmitted infections. It's this unusual stigmatization of HIV that prompted scientists to to speak out.
The problem is the courts operate on the assumption that HIV is highly infectious when, in fact, it's relatively difficult to transmit during sex.
The new consensus statement spells out the risks of transmission quite bluntly:
- Anal intercourse without a condom or antiretroviral therapy: One instance of HIV transmission for every 100 sexual acts;
- Vaginal intercourse without a condom or ARV therapy: 4 to 8 instances of transmission per 10,000 sexual acts;
- When a person uses a condom or takes ARV therapy, the risk of transmission is negligible for either anal or vaginal intercourse;
- When oral sex is performed on a person who is HIV-positive, the risks are also negligible, and when an HIV-person performs oral sex the risks of transmission are non-existent;
- Similarly, the risk of being infected by the saliva of an HIV-person is deemed to be non-existent, and from biting a negligible risk, even if the skin is broken.
The statement does not address the risk of transmission through injection drug use or during birth, both of which are relatively high, but largely preventable.
These details are worth spelling out because, for every example, there have been a number of convictions, and significant jail time served.
As the scientists say in their consensus statement: "We are concerned that miscarriages of justice may result when such evidence is not correctly understood or interpreted."
The scales of justice should not be tipped by scientific ignorance or prejudice.
André Picard is The Globe's public health columnist.