Canada: Three articles cover the gamut of opinions on criminalisation

Three articles published last week covered the gamut of opinions on Canada’s HIV exposure laws, and the impact they are having.

To begin with the most conservative, an opinion piece by Ken Gallinger in the Toronto Star, entitled HIV is not the common cold, concedes, after being asked provocatively “how it could ever be okay for a person who is HIV-positive to have sexual relations with another person?” that HIV-positive people can have sex “as long as both partners fully understand what they are doing, and take every possible precaution to prevent the spread of the virus.”

Another editorial by in the student newspaper, The Martlet, explored the impact of media reporting on the Charles Mzite case in Victoria, BC, and notes that “[p]eople with HIV can have safe, healthy sex lives. They are not criminals, though people like Mzite do much to perpetuate the stigma against them.”

The article also explores the ethics of HIV testing for migrants, and why disclosure is not always possible.

Today, an HIV-positive immigrant like Mzite would have been denied entry into the country. He would not have been allowed to be tested for the virus anonymously like he did in 2001, which allowed him to tell his partner his result was negative without the clinic reporting him to a medical health officer and alerting his partners. Taking away these individual freedoms isn’t addressing the root of why people might hide their HIV-status and continue high-risk behaviour. It’s not easy to tell somebody you have HIV, and it’s not easy to ask.

Finally, Vancouver’s gay paper, Xtra West, interviewed HIV advocate Glenn Betteridge who was in town to discuss the impact of HIV exposure laws on HIV-positive people.

The article highlights that most cases that reach trial are focused on heterosexual transmission, but still warns its gay HIV-positive readers that to avoid legal repercussions when having sex in Canada, they must disclose even if using a condom or having unprotected sex with another HIV-positive person.

Consistently practicing safer sex doesn’t eliminate the need to disclose, either, Betteridge told the Vancouver forum. When it comes to an individual’s obligation under the law in this country, Betteridge bluntly states, “a condom doesn’t cut it.” Though courts in some countries, including Canada, have made judgments based on rates of infection for certain sexual acts, viral load, and the use of condoms, there is to date no definitive legal ruling that practicing safer sex belies the need for open dialogue about HIV status…Betteridge says disclosure can be a factor even between HIV-positive individuals. Although the courts have yet to see such a case, the risks associated with drug-resistant strains of HIV, which can be passed to someone with a currently manageable strain, means disclosure may be required there too.

I do worry enormously about the impact of Canada’s HIV exposure laws. Forcing disclosure every time, even under circumstances when HIV transmission is extremely unlikely, can be a double-edge sword, as a recent Sigma report (from England) discovered.

This year’s CHAPS conference highlighted an important finding from another recent Sigma report, Relative Safety II reported on that:

Some men reported that they took care to disclose their HIV status to sexual partners. One individual even went so far as to save web logs of internet chat to prove that he had disclosed his HIV status in the event of a criminal complaint being made. However, other men had adopted the opposite strategy, and told the investigators that they were taking additional precautions to conceal their HIV status to protect themselves from the risk of prosecution. This suggested to Dr Dodds that the prosecutions were not increasing the likelihood that HIV-positive individuals would disclose to potential sexual partners.

Since the law in England does not actually mandate disclosure, the impact in Canada may differ, but given conversations I’ve had recently with several thoughtful HIV-positive Canadians, I think not.