TORONTO – Canada’s highest court will rule Friday on whether HIV-positive Canadians who don’t tell their sexual partners of their status should face criminal charges.
It’s a contentious issue the Supreme Court of Canada will rule on in two high-profile cases that involved Canadians living with HIV.
But physicians and human rights advocates argue that if Supreme Court judges make Canadians living with HIV disclose their condition to partners, the law would stigmatize these people and perpetuate fear of what’s now a manageable disease.
“This is counterproductive. What it does is it creates a hostile, stigmatizing environment around HIV, even if you’re acting responsibly,” says Richard Elliott, a lawyer and executive director at the Canadian HIV/AIDS Legal Network.
The national organization works to protect and promote human rights for those with HIV. It also encourages law and policy that helps with HIV prevention.
Right now, current laws say there is a duty to disclose your HIV status to potential partners if there’s a “significant risk” or transmission.
In providing its ruling on two landmark cases, the Supreme Court of Canada will decide on whether those who don’t reveal their status should be charged with sexual assault – the same charge handed to rapists, for example.
It carries a maximum penalty of life in prison and an obligatory designation as a sex offender for 20 years.
Elliott says that judges shouldn’t ignore advancements in science and safe sex practices.
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Criminal charges should be considered in the “rare” cases in which a person with HIV may be “maliciously” harming sexual partners, but Elliott suggests that carriers who are responsible in managing their disease don’t put their partners at risk.
“These are significant charges being used. You need to clarify the law,” he said.
HIV patients, who take drug cocktails known as HAART, or highly active antiretroviral therapy, dramatically reduce their viral load to undetectable levels, making the likelihood of transmitting the disease incredibly low.
Researchers have argued that those who are on HAART reduce the chances of transmission by 96 per cent.
Condoms, when worn properly, also reduce to risk of transmission to zero, Elliott says.
Dr. Julio Montaner, director of the B.C. Centre for Excellence in HIV/AIDS, has also fought for the rights of those with HIV. He’s spearheaded world-renowned research that has identified HAART as a treatment as prevention strategy that’s been applauded by the United Nations.
In the Canadian Medical Association Journal, Montaner and his colleagues wrote that holding people criminally responsible for not disclosing their HIV status won’t protect others from infection.
Elliott says that such a law would make people second guess HIV testing, potentially marring health policy and public safety.
Patients may feel a “chill” with their doctors, people may feel a disincentive to get tested and the public may believe that the law would hold their partners accountable to disclose their medical history.
“You encourage a false sense of security with people saying ‘I don’t have to worry about the risks associated because the law says he has to disclose to me if he has HIV’ and that’s foolish,” he said.
“You’d undermine public health efforts.”
In one case the Supreme Court will rule on tomorrow, an HIV-positive man and Sudanese immigrant in Winnipeg was sentenced to 14 years in prison in 2008 after he was found guilty on multiple counts of aggravated sexual assault.
Clato Mabior engaged in unprotected sex with six women – one was a 12-year-old – without disclosing his status.
He had an undetectable viral load and used condoms during intercourse during some of the sexual encounters.
In another case in Quebec, a woman had unprotected sex with her former spouse without telling him of her HIV-positive status.
In that case, she was acquitted by the Quebec appeals court because her viral load was undetectable and the risk of transmission was low.
Crown attorneys in favour of enforcing a law that makes HIV-positive Canadians disclose their status to partners say that HIV is still a fatal disease and that it’s not for police and the courts to determine how well the virus is being suppressed to stave off charges.
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