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The Department of Justice released a directive for prosecuting HIV non-disclosure, what experts called a good step forward. Illustration: Sarah Pixie.

Experts say work still to be done on curbing prosecution 

Inside a building near the Rideau Canal in downtown Ottawa, a spacious room is filled with people from all walks of life. It is an unusually warm winter afternoon and sunlight filters into the space through walls of windows. Potted flowers and shrubs rest on a large table surrounded by lively faces, bathed in a golden glow.

Just 30 years ago, a similar gathering space might have been stocked with cold medical equipment, from IV drips to syringes.

These days, the room is full of life.

“This is a place for living, not for dying,” said Khaled Salam, executive director of the AIDS Committee of Ottawa (ACO).

The Living Room is a drop-in centre at the heart of the ACO, a place for people living with HIV/AIDS to gather for support and resources.

As of 2016, an estimated 63,110 Canadians were living with HIV/AIDS and about 17,000 Canadians had died from the epidemic from 1987 to 2013, according to the most recent data available from the Public Health Agency of Canada.

The virus can be transmitted through semen, blood, and anal and vaginal fluids and suppresses the immune system, leaving patients highly susceptible to other diseases. While HIV is still incurable, it is no longer deadly, largely due to highly successful antiretroviral therapy (ART).

ART works to help the body increase the amount of CD4 cells (a type of white blood cell) in a person with HIV’s bloodstream and decreasing the count of the virus in their bodily fluids. By taking treatments regularly as prescribed, people with HIV can live a healthy and full lifespan.

In a phone interview from Watsonville, Calif., Jennifer Vaughan, who has been living with HIV since 2015, spoke about her experience with ART.

“Everyone thinks it’s still this incredibly deadly disease or really crippling or the medication is really toxic — all these horrible things,” she said. “(But) it’s not a death sentence anymore, it’s so manageable.”

The prosecution of HIV non-disclosure

While HIV is now considered a chronic illness, a different threat has been plaguing those living with the disease for decades: The criminal justice system.

In 1989 Canadian courts began charging people living with HIV for not disclosing their status to someone who could be exposed to the virus, usually a sexual partner, even when there is no intent to transmit the virus, no actual transmission of the virus occurs, and when precautions are used. Most commonly this charge is aggravated sexual assault, which can lead to up to life imprisonment and a spot on the national sex offender registry.

Canadian courts have been among the most aggressive in the world in prosecutions of this type, placing third worldwide behind Russia and the United States for the number of prosecutions for HIV non-disclosure at over 200 documented cases, according to the Canadian HIV/AIDS Legal Network. Three-quarters of all prosecutions in Canada occurred from 2004 to 2014.

Ontario emerges as a hotspot for these prosecutions: As of 2009, the province had accounted for close to 50 per cent (104) of all HIV non-disclosure cases in the country, according to a study published by York University sociology Prof. Eric Mykhalovskiy in 2010.

But now thanks to ART, the risk of transmission has plummeted and is now negligible in people receiving the proper treatment. When treatment pushes the number of copies of the virus to 1,500 copies or less per millilitre of blood, the person is considered to have a low viral load and unable to transmit the virus.

A landmark study published in 2016 in the Journal of the American Medical Association followed over 1,100 European couples between 2010 and 2014. One partner in each relationship was diagnosed with HIV but was receiving ART, while the other partner was not diagnosed with HIV. Cumulatively, the couples had sex at least 58,000 times without the protection of a condom, but no HIV transmissions were recorded.

The study embodies what experts and advocates call U=U, or undetectable equals untransmittable. Advocates and experts say the law has long needed to catch up to scientific evidence on HIV/AIDS, exemplified by this 2016 study.

“When we speak of the problem of HIV criminalization, we’re talking about the overly broad application of the criminal law,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network. Elliott said the network—and most advocates and experts—aligns with the view from bodies such as UNAIDS that prosecution is only warranted in cases of intentional transmission.

“What people seem to hear is that you just don’t want any criminal law ever used, ever, against a person living with HIV … and that is not the position we have ever adopted ”

Calls for a narrower scope of prosecution

The issue for advocates is the law’s scope is rarely ever this narrow in Canada.

Of the over 200 cases that have taken place in Canada from 1989 to 2016, less than two per cent have involved the intentional transmission of HIV, according to Nick Caivano, previously a lawyer with the HIV/AIDS Legal Network. Less than half of these cases involved actual transmission, the network said.

According to people living with HIV, these laws leave them in a constant state of fear.

“I live with more fear of the laws that are supposedly created to protect society from HIV than fear of actually dying from HIV,” said Josh Robbins of Nashville, Tenn., who has been living with HIV since 2012. In Tennessee, the actual transmission of the virus is not required, and people can be sentenced to prison terms of three to 15 years and fined as much as $10,000. “It’s the most unfair set of laws that I think any country has ever had.”

When convicted due to HIV non-disclosure people can face intense discrimination and violence, according to Alex McClelland, a PhD student at Concordia University whose doctoral work focuses on the lives of people criminally charged for non-disclosure.

As of April 2018, of the 16 people McClelland had interviewed, all had either attempted or contemplated death by suicide due to their charges, they said. One of McClelland’s interviewees revealed they had “their request to access doctors ripped up in their faces by prison guards.”

Research suggests prosecuting for HIV non-disclosure isn’t decreasing transmission of the virus.  

A study published in the journal AIDS in 2017 analyzed data collected by the CDC from 1994 to 2010 and found “no association between HIV or AIDS diagnosis rates and criminal (non-disclosure) laws across states over time.”

On the other hand, HIV non-disclosure laws could actually be deterring people from getting tested and receiving treatment.

A survey of close to 450 gay men in Ottawa published in the Journal of the Association of Nurses in AIDS Care in 2012 found that almost a fifth of the respondents was deterred from being tested due to non-disclosure prosecutions.

“If I don’t know my status then I can’t be prosecuted … it’s counterintuitive,” said Sarah North, previously the HIV outreach testing coordinator with the Somerset West Community Health Cente (SSWCHC).

Progress, but much work still to be done

Advocates and experts say Canada took a good step forward on World AIDS Day on Dec. 1, 2018, when Minister of Health Ginette Peptitpas Taylor joined the ACO and a number of other groups on Parliament Hill to endorse the U=U campaign on behalf of the Canadian government.

Later that day, the Department of Justice announced a directive for Crown prosecutors of HIV non-disclosure cases, stating prosecution should not take place when the person living with HIV has maintained a suppressed viral load (under 200 copies of the virus per millilitre of blood) “because there is no realistic possibility of transmission.” The directive also noted those from marginalized populations are disproportionately targeted by these laws.

“We made history that day and years from now … (it) will be seen as a turning point, a milestone,” Salam of the ACO said.

But both Salam and Elliott of the HIV/AIDS Legal Network are mindful that there’s still much work to be done, especially since the directive will only apply to federal prosecutors, who have jurisdiction in the three territories but not the provinces, meaning provincial attorney generals still need to follow suit.

Ontario made progress by issuing a similar directive in 2017 addressing the viral load question, but Elliott points to other gaps in the federal directive, including the point that people with HIV will “generally” not be prosecuted if they have oral sex or use a condom.

“It needs to go further and  … say we will also not prosecute people who have oral sex and we will also not prosecute people who use condoms, full stop.”

For Salam, the fight won’t be over until the stigma surrounding HIV/AIDS is struck down.

“At the end of the day, if people are racist … sexist and … homophobic, … they won’t care what law applies to people living with HIV,” Salam said. “If you … (think) people with HIV deserve to be thrown in jail, you won’t care about applying the criminal law because you don’t see them as human beings; you see them as vectors of transmission.”