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Saturday 10 October 2009

Canada's HIV criminalisation Impasse?

Posted in: HIV
By Craig Young - 27th September 2009

How can HIV criminalisation charges be erased from Canada's judicial landscape? Dale Smith explored these issues in a recent article for the Xtra LGBT newspaper there.

Criminalising social problems doesn't make them go away. As with a total prohibitionist approach to drug policy, it only drives them underground and deprives prevention and diversion programmes of money that might be used to mitigate it. As noted in a previous column, Canada has increased its penalties from public nuisance charges to first degree murder, which has aroused opposition from Canada's LGBT community and HIV prevention groups.

It tends to be a toxic brew of courts, police, public health authorities and sensational media coverage that focuses on 'predatory HIV spreaders." In some cases, tabloid media have pre-published names or other details of appellants before they've had their day in court, prejudicing any potential jury.

Should Canada be addressing the context of HIV transmission more? Yes. "We talk about condoms, we talk about clean needles, but we don't talk about how stigma fosters HIV transmission," says Michelle Ball from the AIDS Committee of Ottawa.

Things like stigma, stress, lack of access to medication and poor nutrition all effect the risk of HIV transmission, says Ball. Capacity-building and citizenship issues need to be urgently addressed in this context. However, this needs to be government policy through nuanced public health reform and wider social policy issues, such as insuring safe housing access.

Some legislators also favour a more nuanced judicial approach, similar to that which exists in New Zealand and the United Kingdom. These are that (i) transmission should be demonstrated to be either intentional or through lack of cognitive skills on the part of the appellant and (ii) no safe sex occurred through meaningful prevention methods like wearing a condom.

Something does need to be done urgently however, as the current heavy-handed judicial approach is deterring HIV+ people from discussing their HIV status with partners so that they can discuss precautions. At the moment, fears of potential criminality deter them from precisely this risk communication process, inhibiting the adoption of safe sex.

Canada's HIV/AIDS Legal Network and Ontario HIV Treatment Network are about to search for solutions to this impasse. One wishes them well -and it may also lead us to carefully consider what steps should be taken to prevent accidental or negligently deliberate HIV transmission here, through providing an example of overreaction and heavy-handed and counter-productive response.

Recently, Bill Watkin of the HIV and AIDS Legal Coalition of Ontario (HALCO) suggested that HIV-positive people that they exercise their legal right not to give statements that could end up being used against them in criminal court. Furthermore, they should not cooperate with anyone, anywhere, anytime, or answer any questions about their sexual conduct. This strikes me as quite legitimate. Surely it is the responsibility of both HIV positive and negative partners to undertake safe sex.

Watkin also feared that negative complainants might also be caught in the HIV criminalisation and surveillance penumbra, given that they had had sex with someone with an 'infectious disease.' He argued that Canada's public health sector was failing to act to quarantine the tiny minority of reckless individuals and warn them about their conduct, which meant that criminal law had had to step in, and undertake a heavy handed approach.

By making disclosure the central proposition, rather than conscientiously undertaking safe sex or not doing so, criminal law had ironically sabotaged disclosure and driven HIV underground, as well as causing negative gay men to disregard our need to conscientiously undertake safe sex. He noted that this has led to HIV+ immigration, treatment and testing overseas, given the current Canadian situation.

As we approach Glen Mills' trial here in New Zealand, we should bear in mind what might happen on the other extreme.


Dale Smith: "Finding a way out of the HIV criminalization loop" Xtra Ottawa: 10.09.09:

Bill Watkin: "Time to stand against the criminalization of HIV" Xtra: 23.09.09:

Craig Young - 27th September 2009

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