Reform laws on HIV
Justice Minister David Lametti has announced that consultations will begin in October on the law that criminalizes the non-disclosure of HIV.
By Star Editorial Board
Mon., Aug. 8, 2022
In the 40 years since Canada reported its first case of AIDS, governments around the world have often taken one step forward and two steps back in combating the virus. Canada has been no exception, and the advance-and-retreat approach continues to this day.
On the heels of the International AIDS Conference in Montreal, federal Health Minister Jean-Yves Duclos announced last week that the government is taking a major step forward to ensure Canadians get tested for HIV.
Duclos said the feds will invest nearly $18 million to increase access to HIV testing in remote and hard-to-reach populations. That is an important step forward since people need to know their HIV status to help protect their health and the health of others.
Yet while increasing access to testing is essential, people have to want to get tested. And on that matter, Canada continues to retreat, as the Canadian criminal law on HIV non-disclosure discourages people from discovering their status.
The current law, based on a pair of 2012 Supreme Court of Canada decisions, requires that those living with HIV either disclose their status to their sexual partners or ensure both that condoms are used and that they have “low” viral loads.
Failure to do so can result in a conviction for one of the most serious sex crimes — aggravated sexual assault — along with lifelong registration as a sex offender, even if there is no intention to transmit HIV and even if it's not transmitted.
Furthermore, the Canadian government has acknowledged that the law disproportionately affects women and members of the black, Indigenous and LGBT communities. Nonetheless, by the end of last year, more than 220 Canadians living with HIV had been prosecuted for non-disclosure.
There is, however, one way out. If people are unaware of their HIV status, they're unlikely to be charged, let alone convicted. The law therefore acts as an impediment to the government's efforts to encourage testing — and that's one major step back.
But there's a second step back. The Canadian Coalition to Reform HIV Criminalization, a national organization of lawyers, researchers and people living with HIV, notes that the law doesn't just deter testing; it also deters people from seeking treatment since medical records can be used in court.
The law consequently directly harms both individual and public health, and has been condemned by numerous groups — including, perhaps surprisingly, the federal Department of Justice and the House of Commons Standing Committee on Justice and Human Rights, both of which have recognized the need for legislative change.
But recognition of the problem is not enough, and to date, the feds have made no changes to the law. That might be about to change, however, as Justice Minister and Attorney General David Lametti announced just before the start of the International AIDS Conference that he will be holding consultations on law reform in October.
The coalition recommends that instead of relying on the blunt instrument of the criminal law, we ought to take a public health approach toward HIV non-disclosure, with prosecutions limited to situations in which someone intentionally transmits the virus.
In contrast to the punitive nature of the criminal law, a public health approach tailors the response to the needs of individuals, and can include counselling, assistance in initiating treatment, and contacting an individual's sexual partners. In most situations, this has proven more effective in addressing HIV non-disclosure than pursuing criminal prosecutions.
By announcing the community consultations, the federal government has the opportunity to replace criminalization with this public health approach. And that would represent, not just a big step, but a giant leap forward.
Source: https://www.thestar.com/opinion/contributors/2022/05/29/monkeypox-please-not-another-virus.html
"Reproduced with permission - Toronto Star"
Toronto Star
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