Editorial: HIV criminal law not the right approach

[Avnish Jolly]

Editorial: HIV criminal law not the right approach
http://www.vancouversun.com/health/Editorial+criminal+right+approach/6110720/story.html

VANCOUVER SUN FEBRUARY 6, 2012 6:13 PM

In 1998, the Supreme Court of Canada laid down the law concerning when
HIV-positive people are required to inform their partners of their HIV
status.

Photograph by: Chris Wattie, Reuters
In 1998, the Supreme Court of Canada laid down the law concerning when
HIV-positive people are required to inform their partners of their HIV
status. Specifically, the court held that if sex results in
“significant risk of bodily harm” — that is, significant risk of HIV
transmission — then the positive person must disclose his or her
status.

That might sound clear enough, but in fact the law has been mired in
uncertainty ever since. It has never been clear, for example, exactly
what activities qualify as posing a significant risk of HIV
transmission, and this has led to inconsistent application of the law
by police, prosecutors and lower courts.

Indeed, since that judgment was delivered, more than 100 HIV-positive
people across Canada — at least 14 people in B.C. — have been
convicted of a variety of offences, even when, according to the
science, their activities did not pose a significant risk of HIV
transmission. In recognition of this, the Supreme Court has decided to
clarify the law, and will hear two cases on this matter Wednesday.

Crown prosecutors intend to argue that the criminal law should require
HIV-positive people to inform their partners of their status
regardless of the risk of HIV transmission, while the defendants,
along with a coalition of interveners, plan to argue that the criminal
law should only require disclosure where, according to the best
medical and scientific information, there exists an actual risk of
harm.

Viewed more broadly, this case really concerns whether the criminal
law is the best method to control the spread of HIV. For myriad
reasons, that question must be answered in the negative.

Consider what would happen if the Crown’s position were endorsed by
the court: One might think the spread of HIV would be curtailed if
every HIV-positive person were required to reveal his or her HIV-
status before engaging in sex, Yet since not knowing one’s HIV status
probably insulates people from the criminal law, the Crown’s position,
if adopted, would likely deter people from getting tested.

This would obviously be bad for people who are HIV-positive, since
they would not get the treatment they need. But it could also
contribute to the spread of the disease since, as researchers at
B.C.’s Centre for Excellence in HIV/AIDS have demonstrated, HIV-
positive people who receive appropriate treatment are much less
infectious than those who are untreated.

The Crown’s position could therefore have the unintended effect of
increasing, rather than decreasing, HIV transmission. This reveals the
poverty of the criminal-law-first approach.

In contrast, by treating HIV-transmission as a public health matter,
we stand a real chance of reducing infection. Although public health
laws vary from province to province, they generally authorize
officials to implement various methods to control individuals’
behaviours. For example, a “graduated” response would permit
authorities to issue orders of increasing severity, from ones
mandating counselling and treatment, to ones prohibiting certain
behaviours, to apprehension and detention.

The public health approach seeks to control behaviour before it
becomes problematic — just the opposite of the criminal law approach,
which waits until the damage is done and then steps in and punishes
the offender. Moreover, the public health approach still allows for
the use of the criminal law — but only as a last resort, when nothing
else has worked.

Of course, it’s not up to the Supreme Court to legislate such policy
matters. But the court could help us to control the epidemic by
rejecting the Crown’s criminal-law-first approach of requiring all HIV-
positive people to reveal they have the disease. In addition, as the
Canadian HIV/AIDS Legal Network has advocated, attorneys-general
across the country could follow suit by agreeing to use the criminal
law only as a last resort.

That would send the message that HIV — rather than HIV-positive people
— is the real enemy that must be eradicated.

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