Canada and the Crime of HIV Exposure

The Supreme Court of Canada has just issued two rulings, one on an appeal from Quebec and the other on an appeal from Manitoba, which together clarify and restructure the circumstances under which criminal sanctions can be applied to an HIV+ person who has sex without disclosing that HIV status to his or her sexual partner.

Since 1998, Canadian law has held that those who fail to disclose their HIV status can be charged with sexual assault or aggravated sexual assault if their sexual relations pose "a significant risk of bodily harm" to their partners. Lower court holdings over the years have held that there was no significant risk of bodily harm where the accused used a condom, or where the accused had a low viral load due to medication. The new Supreme Court holdings agree that there is no significant risk, and no legal duty to disclose HIV status, where the accused's viral load is low due to medication, and a condom is used. But the Supreme Court upheld the convictions of defendants who did not use condoms, even if their viral loads were low.

The decisions have drawn immediate criticism from opposite sides. Advocates for persons with HIV/AIDS accuse the court of reinforcing irrational and unscientific fears of HIV transmission, of stigmatizing those who are infected, and of creating a world in which even responsible condom use offers no surefire protection from prosecution for those who do not disclose their HIV status. The threat of criminal prosecution for an act of consensual sex, they argue, doesn't protect people from HIV transmission. Conservative critics of the opinions lament the Court's having given legal permission for people not to disclose their HIV+ status to their sexual partners in some circumstances.

The Court also said that the "significant risk" necessary to underwrite criminal prosecution would vary with the sex-act in question, and could also change with medical progress.

Canadian AIDS Researchers Oppose HIV-Exposure Prosecutions

The current CMAJ includes this letter from three researchers at the British Columbia Centre for Excellence in HIV/AIDS, arguing for an end to Canada's criminal prosecution of people who allegedly expose sexual partners to HIV. The letter points out that the actual risks of transmission to sexual partners are quite low for well-controlled HIV; that prosecutions have never been shown to reduce rates of infection: and that they may in fact discourage or interfere with HIV testing and treatment. In this interview, one of the co-authors also notes that while Canadian rates of prosecution for HIV exposure have been on the rise, there is no similar policy of prosecuting those who expose partners to other potentially serious viruses like HPV.

Hershey School Rejects HIV+ Student

The AIDS Law Project of Pennsylvania has filed a lawsuit against the Milton Hershey School for disadvantaged students on grounds that the school violated the Americans with Disabilities Act when it rejected an applicant explicitly on grounds of his being HIV+. A statement from the residential pre-K to 12 school said: "In order to protect our children in this unique environment, we cannot accommodate the needs of students with chronic communicable diseases that pose a direct threat to the health and safety of others." "We are serving children," a spokesman for the school said, "and no child can be assumed to always make responsible decisions that protect the well being of others." This seems like a pretty clear ADA violation to me.

HIV (Lack of) Awareness

This CDC report says that of 1.2 million Americans with HIV, 240,000 don't know they're infected. Of every 100 people with HIV, 80 know they have it, 62 are linked to HIV care, 41 stay in care, 36 get antiretroviral therapy, and 28 have their viral loads well controlled. We're used to saying, glibly, that in the US HIV used to be a death sentence, but now it's only a chronic illness. But the fact is that we need to do a lot better on testing and treatment. 16,000 per year are still dying of AIDS--not a large number, as causes of death go (AIDS has been outside the top 15 causes of death since 1997); but AIDS is still a leading cause of death in certain sub-populations, e.g., among younger women and African-Americans. We can do better.