The lack of clarity over when a person with HIV has a legal
obligation to disclose their HIV-positive status to a sexual partner is
resulting in "anxiety, confusion and contradictory HIV counselling
advice," according to a new study on the impact of HIV criminalisation in Canada.
"significant risk" decision
A 1998 Supreme Court decision created Canada's
current law, which obligates people with HIV to disclose their HIV-positive
status before engaging in conduct that poses a “significant risk” of
transmitting the virus. Non-disclosure prior to sex that poses a
"significant risk" renders the sex non-consensual, so that HIV
exposure is considered to be a sexual assault.
Since the Supreme Court was not explicit regarding what
constitutes a “significant risk” this has led to inconsistent and overly-broad
interpretations by Canada's
police and lower courts.
Some people have been charged and/or convicted for having
sex with a condom and/or oral sex alone while others
have been acquitted for unprotected anal sex. Although the Courts of Appeal
of Manitoba and Quebec
have recently ruled that when a condom is used or when a person has an
undetectable viral load there is no significant risk of transmission and,
therefore, there is no duty to disclose, these decisions may yet be reversed.
The Supreme Court is scheduled to hear the prosecution’s appeal in at least one
of these cases in 2012.
As part of a criminal law reform project
to encourage a more evidence-informed application of the criminal law, Eric
Mykhalovskiy, an Associate Professor in the Department of Sociology at York
University in Toronto interviewed 28 healthcare and HIV service providers, and
a further 26 people with HIV participated in four focus group interviews. The
interviews took place in three cities in the province
of Ontario – Toronto,
Hamilton – between January and September, 2010.
Anger, fear and
confusion for people with HIV
A consistent theme in the focus group interviews with
HIV-positive individuals was that there was a disconnect between what science
(and public health) knew to be epidemiologically important risks and the lack
of consistent legal recognition of these risks and how to reduce them, such as
by using condoms.
The legal uncertainty over which sexual acts pose a
"significant risk", thus triggering the obligation to disclose, left
many study participants "angry, confused and frightened" notes Professor
Mykhalovskiy. Although some participants with HIV claimed to disclose in all
sexual circumstances, others said they were less open about their HIV-positive
status as a result of the law. A few
participants admitted that they have responded to the situation by withdrawing
from sex altogether.
Healthcare providers also admitted to struggling with the
tension between unclear legal concepts of "significant risk" and
public health-focused safer sex counselling. This has resulted in people with
HIV being provided with inconsistent
and contradictory information about their legal obligation to disclose.
Some healthcare providers have responded to the vagueness of
the law by advising patients to disclose to all sexual partners, regardless of
the transmission risks they pose.
Professor Mykhalovskiy notes that "a troubling
consequence" is that detaching disclosure from scientific assessments of
"significant risk" can result in a "blanket moral
obligation" to disclose, which was not the intention of the Supreme Court.
Don't ask, don't tell
Healthcare providers emphasised how HIV criminalisation has
impeded their ability to establish trust with their HIV-positive clients and
patients, creating a chill in their counselling relationships. Mindful that
medical and counselling records could be used in criminal proceedings,
healthcare workers are cautioning their patients about the limits of client
confidentiality, resulting in a 'don't ask, don't tell' approach. Professor Mykhalovskiy
notes a perverse circularity of public health/criminal law relations as
counselling and record keeping are done with an "eye to the law" in
anticipation of their potential use in criminal proceedings.
Fears of false
allegations of non-disclosure
People with HIV and healthcare providers also voiced
concerns over the difficulties
of proving (non) disclosure in court. Some people with HIV – notably female
migrants of African origin – voiced concerns that they were vulnerable to
arrest and prosecution following false allegations of non-disclosure. Professor
Mykhalovskiy notes that "in the context of unequal relationships, the
legal requirement to disclose can be subject to manipulation...partners can use
false claims of non-disclosure to control and threaten" people with HIV.
guidelines may establish clarity
Professor Mykhalovskiy notes that "while the use of the
criminal law may be warranted in some circumstances, the expansive use of a
vague legal concept of significant risk does little good either for preventing
HIV transmission or for the credibility of the criminal justice system."
He concludes that the establishment of prosecutorial guidelines may create some
clarity regarding disclosure obligations, potentially mitigating some of the
problems described in this study.