Canada: Study finds HIV criminalisation creates uncertainty, fear, and vulnerability

Last week’s devastating ruling of the Supreme Court of Canada was quick to dismiss evidence that that HIV criminalisation was damaging to public health.

“The only ‘evidence’ was studies presented by interveners suggesting that criminalization ‘probably’ acts as a deterrent to HIV testing,” wrote Chief Justice McLachlin. “The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.”

And yet a few weeks earlier, a Canadian study was published that highlights exactly how the criminalisation of HIV non-disclosure is damaging public health. It may not be possible to prove that it deters testing, but it certainly creates all kinds of problems for people living with, and at risk of, HIV.

The lead author of the study, How criminalization is affecting people living with HIV in Ontario is Professor Barry D. Adam, University Professor of Sociology at the University of Windsor, Ontario, and Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network, Canada.

Download the report here

Drawing on results from the Ontario HIV Treatment Network Cohort Study, the Positive Places Healthy Places Cohort Study, and in-depth interviews with 122 HIV-positive people, the report examines how people living with HIV in Ontario perceive the law and the legal obligation to disclose their HIV-positive status to prospective sexual partners, as well as their perceptions of the changing public climate affected by the increasing prominence of criminal discourses applied to HIV.

The report shows how the criminal justice system and media coverage have created a climate of anxiety (though not all feel equally affected), affected views on when disclosure is (and is not) necessary, shaped messages from health professionals, and affected disclosure practices. The legal and media framing of HIV as a responsibility to disclose potentially undermines HIV prevention messaging and places ever greater numbers of people living with HIV in jeopardy.

Most study participants believed that disclosure of HIV-positive status should not be a legal requirement if protected sex is practiced. There was no significant variation in opinion by age, gender, sexual orientation, or ethnicity, but more educated respondents showed less punitive views.

The study’s primary finding is that that HIV criminalisation has unfairly shifted the burden of proof so that people living with HIV are held to be guilty until proven innocent and that:

People with HIV are now caught in a difficult he-said/(s)he-said situation of having to justify their actions;
disgruntled partners now have a legal weapon to wield against them regardless of the facts; and
the onus now falls on women whose male partners could ignore their wishes regarding safer sex.

In terms of general impact, many respondents reported a heightened sense of uncertainty, fear, or vulnerability, but others felt that the climate of acceptance is still better than in the early days of the epidemic, or that the prosecution of the high profile cases is justified and these people are giving all people with HIV a bad name.

To set the scene, in its introduction the report provides an extremely well-written exposition of why criminalisation HIV non-disclosure is problematic from a human rights, as well as a public health perspective. An edited version, below, provides you with a flavour of the insights.

The relationship between disclosure and HIV risk is complex at best… While some studies have found an association between disclosure and condom use, more have found no relationship…Disclosure poses a range of challenges in everyday social situations. The demand to disclose essentially requires HIV-positive people to place themselves in a situation to be rejected or stigmatized, a situation exacerbated in a climate of rising prosecution and media attention…

Ultimately reliance on disclosure makes sense as an HIV prevention measure only if both partners are certain of their serostatus, though epidemiologists point out that significant percentages of people who are HIV-positive do not know they are. In Canada, an estimated 26 percent of people infected with HIV are unaware of this fact. Indeed some researchers contend that transmission by those unaware of their infection accounts for a significant portion of new infections. Criminal prosecutions for non-disclosure encourage at-risk persons to rely on prospective sex partners to disclose their HIV status, if positive, and to assume that there is no or minimal risk in the absence of positive serostatus disclosure, evident in complainants’ testimony at trial in such cases. Serostatus disclosure laws may thus foster a false sense of security among HIV-negative persons who may default to forgoing safer sex unless notified of their partners’ HIV-positive status. Reliance on disclosure, then, is a shaky foundation for HIV avoidance. By absolving people of responsibility for practising safer sex, it may even increase vulnerability to infection.

Disclosure, then, is often challenging to accomplish in everyday life and the research evidence shows that disclosure is far from reliable as a method of avoiding HIV. The accumulation and consolidation of a body of legal doctrine that rests primarily on an obligation to disclose by those who know they are HIV-positive raises a number of problems in the pursuit of effective public policy in HIV prevention. There is, then, a need to test the presuppositions underlying the legal obligation to disclose as an HIV prevention strategy and to examine the real effects of criminalizing non-disclosure on people living with HIV.

Towards the end of the report, the authors discuss the impact of criminalisation of HIV non-disclosure on public health. Again an edited version, below, provides you with a flavour of the insights.

In Canada in recent years, the state has been shifting resources from social services to law enforcement… In HIV, the prosecutorial arm of the state has expanded while support for ASOs and for HIV prevention has become increasingly tenuous. The move on the part of some attorneys general to press for more punitive solutions to HIV prevention has many pitfalls and unintended consequences that amount, in the long run, to a public policy with poor prospects for meaningful reduction in HIV transmission combined with real damage to the lives and well-being of [people living with HIV]. Indeed obsessive focus on disclosure may create the conditions of accelerated transmission if people abandon safe sex in favour of disclosure as the preferred method of HIV avoidance…

Criminalization, whether minimal or expansive in punitive scope, has little potential to slow the advance of the HIV epidemic and has considerable potential to undermine prevention efforts currently under way….At the same time, increasing reliance on the criminal justice system to enforce a principle of universal disclosure of HIV-positive status, regardless of the likelihood of transmission, presses [people living with HIV] into an untenable double bind: they must place themselves into the risky position of heightening the possibility of rejection, stigmatization, and prosecution. Double binds can scarcely be the foundation for realistic public policy or consistent practice among [people living with HIV]. Only decriminalization and destigmatization would begin to create the conditions to make disclosure of sero-status safe. But perhaps more importantly, disclosure has been shown to be an unreliable method of reducing HIV transmission. Obscured by the criminalization debates is the fact that protected sex, especially in a situation where treatment has succeeded in attaining an undetectable viral load in the HIV-positive partner, continues to be a much more reliable method of avoiding HIV (as well as several other sexually transmitted infections).

It is interesting to note that the Supreme Court has, at least, recognised this last observation. However, the reality of the ruling is that it states very clearly that disclosure alone is enough to negate criminal liability (notwithstanding difficulties of proving that this occurred). It also very worringly undermines safer sex messaging by stating that condoms alone (or low viral load alone) are not ‘safe’ enough.

The study concludes with the following recommendations:

Among police and prosecutors to employ consistent evidence-informed principles in the laying of charges (i.e. by developing prosecutorial and police guidelines)
Among journalists to employ a rigorous decision-making matrix that strictly minimizes the publication of the identity of people living with HIV, and
In public health and AIDS service organisations to develop a consistent counseling policy that does not mistake universal disclosure for prevention but rather focuses on how best to engage the sexual cultures of at risk populations to advance safer sex practice.

US: Study finds criminalising alleged HIV non-disclosure an ineffective HIV prevention tool

A recent study published in the American Journal of Public Health by the leading US researcher into the impacts of HIV criminalisation, Carol Galletly J.D. and Ph.D., of the Center for AIDS Intervention Research at the Medical College of Wisconsin, has concluded that a New Jersey law requiring individuals with HIV to disclose their HIV-positive status to their sexual partners does not appear to be an effective HIV prevention intervention.

In the article ‘New Jersey’s HIV Exposure Law and the HIV-Related Attitudes, Beliefs, and Sexual and Seropositive Status Disclosure Behaviors of a Sample of Persons Living with HIV’, Galletly and colleagues surveyed 479 HIV-positive New Jersey residents between March and October 2010 about the New Jersey law that requires HIV-positive individuals to disclose their status to sexual partners.

N.J. Stat. Ann. § 2C: 34-5

A person is guilty of a crime of the third degree if, knowing that he or she is infected with HIV, he or she commits an act of sexual penetration without the informed consent of the other person.

The study found that the law does not seem to be effective as an HIV prevention tool. Although 51 percent of study participants reported knowledge of the law, there was no difference between those aware and unaware of the law in terms of HIV disclosure, risky sex, and condom use. In fact, most of the participants reported complying with the letter of the law for the previous year regardless of whether they were aware of the law or not.

Study abstract

An article by the CDC at thebody.com summarises additional findings on HIV-related stigma and perceptions of responsibility for HIV prevention.

Knowledge of the law was not associated with negative outcomes for HIV-infected study participants. Persons aware of the law did not report greater social hostility toward persons with HIV or experience more discomfort with HIV-status disclosure or more HIV-related stigma. On the other hand, those who were not aware of the law perceived more social hostility toward HIV-infected persons, experienced greater HIV-related stigma, and were less comfortable with HIV-status disclosure.

The 479 study participants, who were aged 19 to 66 years, were 45 percent female and were approximately 66 percent African American, 16 percent Hispanic, and 13 percent Caucasian. When the researchers questioned them about responsibility for HIV prevention, 90 percent believed that an HIV-infected person bore at least half of the responsibility for ensuring that their seronegative partners did not contract the disease through sex, and 34 percent felt the HIV-infected person had the full responsibility.

Given that there were no differences in behaviours or attitudes towards HIV disclosure, safer sex or responsibility for HIV prevention between those aware of the law or not, and the very high risk of human rights violations and miscarriages of justice in the application of HIV disclosure laws, the study’s findings strongly suggest that HIV-specific criminal statutes criminalising HIV non-disclosure without consideration of actual risk and harm, and proof of a suitably culpable state of mind are bad laws that should be repealed.

Plenary Session 2: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

Introduction by Co-chairs, Ton Coenen (HIV in Europe) and Lisa Power (Terrence Higgins Trust)
– Louis Gay (Norwegian HIV Patient Network): From accused to activist
– Kim Fangen (Norwegian Law Commission): Reforming the ‘HIV paragraph’ in Norway – lessons learned
– Matthew Weait (Professor of Law and Policy, Birkbeck College, University of London): Nordic advocacy research project – lessons learned
– Carsten Schatz (Board Member, DAH): DAH Position Paper – content and lessons learned
– Lucy Stackpool Moore (IPPF, London), Marielle Nakunzi (RFSU, Sweden) & Kevin Osborne (IPPF, London): ‘Criminalise Hate, Not HIV’: IPPF’s media strategy and advocacy approaches and lessons learned from Sweden
– Q&A / discussion

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network

"Should HIV Be Jailed? HIV Criminal Exposure Statutes and Their Effects" by Arianne Stein

Publication Title Washington University Global Studies Law Review Recommended Citation Arianne Stein, Should HIV Be Jailed? HIV Criminal Exposure Statutes and Their Effects in the United States and South Africa, 3 Wash. U. Glob. Stud. L. Rev. 177 (2004), http://digitalcommons.law.wustl.edu/globalstudies/vol3/iss1/7

Survey suggests HIV laws intimidating, counterproductive | The Colorado Independent

WASHINGTON, DC – Nearly half of HIV-positive respondents to a recently released survey on HIV criminalization say they believe they will not receive a fair hearing in the criminal justice system if they ever face charges for failing to disclose their status to sexual partners.

University of Michigan News Service | Michigan courts use HIV disclosure laws to punish poor, marginalized individuals

ANN ARBOR, Mich.-Michigan’s felony HIV disclosure law is a tool to control and punish marginalized and poor individuals in criminal court cases, according to new University of Michigan findings. In many states, a person with HIV can be charged with a crime if he or she engages in sexual activity without telling the other person.

People with HIV Fear Unfair Treatment in Courts

People with HIV Fear Unfair Treatment in Courts Originally printed (Issue 2032 – Between The Lines News) Nearly half of HIV-positive respondents to a recently released survey on HIV criminalization say they believe they will not receive a fair hearing in the criminal justice system if they ever face charges for failing to disclose their status to sexual partners.

Press Conference (AIDS 2012)

HIV Criminalization – An Epidemic Of Ignorance?

Laws and prosecutions that single out people with living with HIV are ineffective, counterproductive and unjust.

As delegates from around the world met in Washington DC at AIDS 2012 to discuss how to “end AIDS” through the application of the latest scientific advances, this press conference highlighted how laws and policies based on stigma and ignorance are not only creating major barriers to prevention, testing, care and treatment, but also seriously violating the human rights of people living with HIV.

Hosted by (in alphabetical order): The Center for HIV Law & Policy / Positive Justice Project, United States; Global Network of People Living with HIV (GNP+), Netherlands; HIV Justice Network, United Kingdom/Germany; INA (Maori, Indigenous & South Pacific) HIV/AIDS Foundation, New Zealand; The SERO Project, United States; Terrence Higgins Trust, United Kingdom; UNAIDS, Switzerland.

Chaired by Paul de Lay, Deputy Executive Director, UNAIDS, Switzerland

Speakers:

– Nick Rhoades, HIV criminalization survivor, United States [from 03:28]
– Marama Pala, former complainant, New Zealand [from 09:15]
– Edwin J Bernard, Co-ordinator, HIV Justice Network/Consultant, GNP+ [from 14:35]
– Laurel Sprague, Research Director – SERO, United States [from 23:15]
– Lisa Fager Bediako, Congressional Black Caucus Foundation/ Positive Justice Project, United States [from 33:10]

Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network