Hello from Vancouver.
It's a pleasure to be asked to address the Standing Committee on Justice and Human Rights as you consider criminalization of HIV non-disclosure.
This is a very important issue that has public health implications that go far beyond the individuals who have been criminally charged. I would like to focus my comments on these unintended consequences.
I am an infectious disease specialist and epidemiologist. I was recently the director of the BC Centre for Disease Control and the deputy provincial health officer of British Columbia. I have been working in the area of prevention for over 30 years. I started medical school in 1982, the year this new disease, later called AIDS, was described among gay men in New York and San Francisco. I have worked in clinics and have conducted research with hemophiliacs, gay men, indigenous peoples, sex workers, and more recently, people who use drugs. I spent four years living in Kenya, working on HIV prevention when no treatment existed. I have had the opportunity to work and collaborate with global leaders in HIV prevention and have presented at literally hundreds of conferences and meetings about HIV testing, treatment and prevention.
I can state emphatically that I cannot recall speaking to anyone in the field of HIV who felt that criminalizing people for HIV transmission was useful as a deterrent to prevent HIV transmission. Further, I cannot recall speaking to anyone who thought that charging people under a criminal code that included aggravated sexual assault was anywhere close to fairness, even if HIV was transmitted.
I have been involved in three cases as an expert witness. In none of these cases was HIV transmitted, and in all cases there were considerable actions on the part of the accused to reduce the risk of transmission through condoms and/or antiretroviral medications. I was amazed how the lawyers for the Crown were so fixated on the difference between “no risk” and “negligible risk” of transmission. It is basically the same thing for all practical purposes. Among the estimated 60 million HIV infections that have occurred worldwide, it is very likely that someone was infected even though a condom was used properly, or transmission occurred through oral sex, but the odds are in the same range as winning, or in this case losing, the lottery. It is clear that many of the potential exposures that are considered in criminal proceedings in Canada pose no practical risk for HIV transmission.
In public health, it is always better to engage, inform and educate, and create environments where people feel at ease to discuss their concerns. Punitive actions and sanctions, especially at the extreme end of the criminal justice system, will fail. Pushing people into the shadows based on fear is always counterproductive. Consider the criminalization of drugs.
However, it is the unintended and unmeasurable consequences of these laws that make them particularly damaging to HIV prevention in general. The evidence to support this is clearly outlined in two consensus documents that have been submitted as part of these proceedings. These are the “Expert consensus statement on the science of HIV in the context of criminal law”, from 2018, and the “Canadian consensus statement on HIV and its transmission in the context of criminal law”, published in 2014, on which I am the co-lead author.
Like many of the topics in HIV, ideology and fear drive the debate and not so much science and evidence. If it were based on science and evidence, there would have never been any consideration of criminalizing HIV non-disclosure in the first place. While you may hear from other expert witnesses that the science has changed and so must the laws, I do not think these non-disclosure laws were justified 30 years ago when we were just learning about HIV transmission.
Even if it was found that HIV transmission was still possible while taking antiretroviral therapy or that condoms were not that effective in preventing HIV transmission, the laws were still unjustified from a public health perspective. There is simply nothing in public health that warrants criminal sanctions for sexual behaviours. There are already more than enough tools at the disposal of public health officials to identify any individual who may fall into the rare situation of trying to infect others.
There are three main public health implications of criminalization of non-disclosure. The actual extent of these public health implications are difficult to measure empirically, but they are critical to this debate.
Implication number one is the impact on HIV testing. Expanding and normalizing HIV testing is a priority in HIV prevention. It is estimated that 20% of HIV-positive Canadians do not know their status. Any policies that discourage HIV testing need to be eliminated, and the threat of criminalization for non-disclosure is at the top of the priority list. Why would people get tested knowing the risk? I can honestly say that I would think twice knowing these implications.
We want to encourage people who may be at risk of HIV infection to get regular HIV testing. It should be like getting tested for diabetes or high cholesterol. You have a test, you get a diagnosis and you receive treatment and information.
Implication two is the impact on disclosure itself. While we can all agree that people should disclose their HIV status to a sexual partner, these laws paradoxically discourage people from disclosing. If people understood the very small odds of transmission, even with sex that is totally unprotected, then they would likely take their chances. Why complicate the relationship knowing the potential implications? Many of the criminal cases have involved relationships that have gone wrong, and criminal proceedings are used as a means of getting back at a particular individual, often long after the encounter occurred.
The third implication is that the criminal penalty far exceeds the crime. Even if HIV was transmitted during a sexual exposure that did not include disclosure of HIV status, a sexual assault conviction far outweighs the actual consequences of becoming HIV positive. The life expectancy of an HIV-positive person on antiretroviral therapy is now equal to an HIV-negative person. The treatment is that good.
It certainly is true that living with HIV carries with it other emotional and psychological challenges, but this is largely due to the stigma that still surrounds HIV in Canada. Further, the people who end up being charged are often victims themselves. The only way that these cases come to the attention of law enforcement is that someone got angry, had a personal grudge or some other unusual situation.
The law is not enforced with any consistency and only a relatively small proportion of people are impacted. If we really thought that non-disclosure should be a central tool for reducing HIV transmission, then we would have every new HIV infection reported to the police, and they would do a thorough investigation around the circumstances of that transmission. We would find that most new infections occur when people are involved in situations where they either do not know or do not ask about the HIV status of their partner. Clearly this would be a disastrous policy.
HIV non-disclosure laws were a mistake from the outset. Now, decades later, we are debating something that should never have been enacted in the first place. While it may seem like criminalization acts as a deterrent, we know that this is not the case. I feel strongly that it is time that the Criminal Code around HIV non-disclosure be amended, as it is causing serious injustice to the people being accused and has immeasurable unintended negative consequences in the fight to eliminate HIV transmission in Canada.
Thank you.