Criminal law out of step with science of HIV, advocates say

Above: Su-Ling Goh has part one of our special series on the criminalization of HIV. A group of Canadian medical experts says current law is based on outdated information.

EDMONTON — When HIV-AIDS first hit North America in the 1980s, diagnosis almost always meant early death.

As the virus spread out of control, the legal system began to see unprecedented cases: people with HIV charged with serious offences – most commonly aggravated sexual assault. Since the early 1990s, more than 150 HIV-positive people have been taken to court in Canada for not telling their sex partners they have the virus.

But now that treatments have advanced to the point that HIV is no longer fatal nor easily transmitted, doctors argue the law is due for an update.

READ MORE: HIV isn’t easily transmitted by sex, Canadian doctors say 

“We were concerned that injustices were happening — or they could happen,” says Dr. Ryan Cooper, an infectious disease specialist from Edmonton. He was one of more than 70 Canadian HIV experts who recently released a consensus statement.

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The statement says HIV, properly treated, is now a manageable, chronic condition and that people with HIV have the same life expectancy as anyone else. It argues that scientific and medical evidence show there is low to no possibility of HIV transmission through sex, even without a condom.

“When HIV is treated with anti-retroviral drugs … it becomes very hard to transmit,” Cooper says. “There’s a near-negligible chance of transmission.”

Doctors and scientists have a duty to help those working in the criminal justice system understand the science of HIV, to prevent miscarriages of justice, the statement concludes.

The problem with the current law, according to Cooper and many other HIV advocates, is that it is applied too broadly and with harsh results: According to the Canadian HIV-AIDS Legal Network, 78 per cent of cases have resulted in convictions. Of those, 89 per cent led to jail time.

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In 1998, the Supreme Court of Canada ruled that everyone with HIV had to disclose their status to sex partners, or face the possibility of charges.

“It’s a really unusual fit, if you think about it,” says University of Alberta law professor Peter Sankoff.

“Most sexual assault is a crime of violence. This is one of the few situations where two parties consensually get together.

“There is complete agreement as to every aspect of the sexual activity that takes place. The only thing that’s not agreed to is that some aspect of information has not passed between the two parties.”

In 2012, the court updated the ruling, saying people with HIV did not have to disclose as long as they used a condom and had a low level of the virus — or viral load.

But advocates argue the two requirements for non-disclosure are unjust.

For instance, people with mental illness, addictions or disabilities may not be able to maintain their medication to keep their viral load down. Or they may not have the capacity to tell a sex partner they have the virus. Those in abusive relationships may not be safe to disclose. Yet anyone with HIV can be charged with aggravated sexual assault and face a maximum penalty of life in prison.

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“We don’t apply the criminal law to any other infection, condition or public health issue,” says Cooper. “HIV is quite unique that way, and I think it’s unfair.”

Tuesday’s article will examine why some say the current law actually promotes the spread of HIV.

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