Criminal Injustice

By Rohith Bhargavan, Communications Assistant

The struggle against HIV stigma in our society has come a long way since the fear and hysteria of the early epidemic.  Part of this has to do with our biomedical knowledge: We know how the virus is transmitted and how it is not transmitted; we know how to test for the virus and have prophylactics to prevent transmission in the event of accidental exposure.  In fact, with timely access to medical care and antiretrovirals, we know that carrying HIV no longer prevents us from living a healthy and fulfilling life.  However, a dangerous trend towards criminalisation of HIV and certain other blood-borne pathogens is ignoring this long history of drug development and public health evidence in favour of a name-and-shame style of justice.
Since the 1998 Regina vs. Cuerrier Supreme Court decision, it has been illegal for a positive person to expose their partner to “significant risk” of transmission without disclosing their HIV status first.  This decision has been inconsistently applied, with grey areas around sex with a condom as well as what constitutes “significant risk”.  However,  rather than recognising the radical shift in HIV prevention, prognosis and treatment from 1998 to today, legal procedures are regressing to aggressively criminalise the positive community.  There is no evidence to suggest that mandatory disclosure of HIV status is effective broad-spectrum to reduce incidence of new cases. Instead, forced disclosure and other legal penalties discourages people from getting regular testing for the virus; if you don’t know your status, there is no ground for prosecution.  Delayed testing and diagnosis results in delayed treatment, and thus is a direct hindrance to clinical management of HIV burden in the community.

A large percentage of sexual transmission of HIV arises during the first weeks or months of the viral course, commonly known as the ‘window period.’ Definitive testing is not possible during this period immediately following transmission, but viral level in the blood is much higher than later stages of the viral life cycle.  Since it is not possible to know HIV status at this time, criminal prosecution is not an effective means of reducing sexual transmission of HIV.

Forced disclosure does, however, carry very real negative consequences for reduction of transmission of HIV through open communal dialogue. The court system seeks to assign blame for this public health concern instead of fostering an environment of universal awareness, resulting in a shift of responsibility to those carrying HIV. This reduced awareness of HIV and other sexual health issues and leads, in turn, to increased discrimination of positive individuals; it increases the need for secrecy and reduces critical engagement with our collective health.

It remains all too easy today to punish people who have done nothing wrong.  Our way of thinking may have advanced since the “death sentence” hysteria of HIV in the 1980s, but there is still a wide chasm to jump before we can all feel safe to have open discussions about the impact of HIV in our lives.  Before that can happen, we need to stop blaming each other and start thinking about how we can work together to tackle the problems facing our communities.


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