Canadian study finds criminalisation confusion "chills" open and honest discussion of HIV risk-taking

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.

Vague "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, Ottawa and 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.

Inconsistent and contradictory counselling

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.

Prosecutorial 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.

Mykhalovskiy E The problem of "significant risk": Exploring the public health impact of criminalizing HIV non-disclosure. Social Science & Medicine (2011), doi:10.1016/j.socscimed.2011.06.05 (In press)