HIV status and the law is not defined clearly in Canada Special

Canada is a leader in terms of the number of people per capita prosecuted for allegedly exposing a partner to HIV. Does Canada prosecute patients of HIV unfairly? Some of those cases though are for people who pose little to no risk of transmission.

In Canada it is a criminal offense to transmit or expose another person to HIV through unprotected sex. The courts have decided that people with HIV must share with those they wish to have sex with their HIV status. Patients with HIV that fail to do so risk being convicted of serious criminal offenses, such as aggravated sexual assault or grievous bodily harm, and sentenced to significant time in prison for failing to disclose their HIV status. There have also been charges for individuals more recently for other sexually transmitted infections. There are no specific HIV-related crimes under Canadian law. The Crown and police use a combination of existing laws ranging from simple assault to murder when charging a person for not revealing their positive HIV status. The first time that this type of prosecution was deemed acceptable in Canada was in 1998. The Canadian HIV/AIDS Legal Network is working for those who have been unjustly attacked in the legal system by calling for the adoption of guidelines to govern Canadian prosecutors that would avoid miscarriages of justice and the misuse of criminal charges. While the media has had a field day in the past when a person with HIV has been charged with a crime the bottom line is who is responsible for their own health? Is charging a person with HIV just and fair when unprotected sex for anyone can be likened to playing Russian Roulette in today's society? Does putting a person with HIV in prison stop the spread of the virus in the community? For the short term that could be true but prison is not a place where people come to terms with their status. The high incidence of male rape and sex between men in prisons also mean that HIV transmission is still perfectly possible, even behind bars. Cécile Kazatchkine, Policy Analyst at the Canadian HIV/AIDS Legal Network said during a phone interview the legal text in Canada states that those infected with the HIV virus must disclose their status prior to sexual relations with a new partner. "Criminally it must be proven that the accused did not disclose their status before having unprotected sex with a partner even if no infection occurs with the victim." In Canada Kazatchkine added the law is not clearly defined and is used in a case to case basis. Because of this those with HIV are not sure how to understand the law. "There is great concern in regards to HIV that the law is not clearly defined and the possible issues that could be a potential problem for the public health of Canada." The law is overly broad making it possible for cases of 'he said, she said' type of scenarios. "The Canadian HIV/AIDS Legal Network does understand that in limited cases where there is a clear intention of a suspect to transmit the HIV virus to other criminal proceedings are warranted," Kazatchkine said, "However there have been cases that have gone to trial even when a condom has been worn or oral sex is cited as the assault. With oral sex there is an extremely low risk to partners of infection." Kazatchkine said she was aware of one case where the 'victim' had threatened the accuse with going to the police and lying about being unaware of their partner's HIV status. That is a very real possibly with the way the courts and police approach the laws in place as they said. With no clearly defined definitions of the law it is up for grabs in legal settings. The 'he said, she said' game puts it up to the court to decide whose credibility is higher. "The way the law is used now puts all on the accused and nothing on the victim. This undermines all the messages we have heard from public health about the prevention of the virus," Kazatchkine said, "People are responsible for their own health safety. In Canada there are a lot of people with HIV that are unaware of their status." Safe safe is not the responsibility of a person's sexual partner, it is the responsibility of that person. Putting HIV positive people behind bars for having sex may appear to be a solution but it is a short term band-aid at best. In Canada having clearly defined laws and only going after those who intentionally used their virus as a means to infect others is needed. Not only for the law but for the overall public health of the nation. By allowing the possibility of "she said, he said" convictions also lowers the chance of those who would be tested but decline for fear of knowing their status.