Criminalizing HIV Transmission Discourages Testing, Contributes to Spread of Virus, Some Canadian Advocates Say

Some HIV/AIDS advocacy groups and physicians in Canada are calling for an end to recent criminal trials of HIV-positive people who allegedly exposed sexual partners to the virus knowingly, arguing that the criminalization of HIV transmission does more harm than good, the National Post reports. Mark Wainberg, a Montreal-based physician and former head of the International AIDS Society, said that although his support of the anti-criminalization movement might seem "counterintuitive," the publicity surrounding criminal HIV cases adds to the negative stigma surrounding the virus and discourages people from testing. Wainberg said, "We don't want to stigmatize and, in a way, you are stigmatizing HIV-positive status. We're not doing enough to encourage testing, and decriminalizing transmission would be a step in the right direction." He added that criminal law should not be used in the context of consensual sex and instead should be used when a person deliberately tries to spread HIV through methods such as needle pricks or similar actions.

According to the Post, the legal merits of criminalizing HIV transmission were established by the Canadian Supreme Court in a 1998 decision that said people who do not disclose their HIV-positive status do not have their partners' consent for sex, making the act an assault. Exact statistics are "hard to find," the Post reports, but more than 80 people, mostly men, have been charged with criminal offenses in Canada for exposing sexual partners to HIV, according to a study scheduled to be published in the Canadian Journal of Law and Society by Barry Adam, research director of the Ontario HIV Treatment Network and a University of Windsor sociologist. Alison Symington of the Canadian HIV/AIDS Legal Network -- which is opposed to most cases of criminal HIV transmission -- said that there have been at least 10 such prosecutions in each of the last three years.

Although Wainberg said that there is not much empirical evidence that criminal cases are keeping people who are unknowingly living with HIV/AIDS from being tested, the Post reports that Adam is leading a study that will examine the effect of criminal cases on people who are aware they are living with the virus. The Post also reports that not all HIV/AIDS advocates are opposed to the criminalization movement. Robert Remis, head of the Ontario HIV Epidemiologic Monitoring Unit, said that although other methods such as counseling and public health laws should initially be used among people who exhibit irresponsible sexual behavior, criminal law is "just the right thing to do" in some circumstances. Remis said he thinks it is "unacceptable" to "knowingly and sort of willfully expose someone else to what can be a fatal disease." He added that such exposure is "beyond the limit" and is a "potentially serious assault" (Blackwell, National Post, 1/14).