HIV Criminalisation, Sex, Risk & Viral Load In The Real World.

Here are two positive developments that move forward the debate about sex, risk, undetectable viral load and the criminalisation of HIV non-disclosure.

2011 marked the thirtieth anniversary of the HIV/AIDS pandemic. Much has been achieved in those three decades, most notably advances in treatment that have changed the face of HIV for those who have access to antiretroviral (ARV) medication from a terminal illness to a chronic yet manageable disease.

But of late there’s been other good news to celebrate. Just last month, for example, researchers from the University of Western Ontario announced that clinical trials are about to begin on a new HIV vaccine they’ve developed. And it does seem that, increasingly, more and more experts are becoming convinced that +ve individuals, appropriately treated with an undetectable viral load are much less likely to pass on the virus than people not on treatment. However, as PositiveLite editor Bob Leahy recently pointed out by how much and in what circumstances is still subject to debate.

The latest people to take the view that +ve individuals on treatment with undetectable viral loads are unlikely to infect their sexual partners are the two organizations that write the HIV treatment guidelines for the UK, the British Association for Sexual Health and HIV  and the British HIV Association. They’ve done this via their newly revised guidelines for the use of post-exposure prophylaxis (PEP).

PEP is an emergency measure aimed at preventing HIV infection after the possible exposure of an HIV negative person to the virus. The new UK guidelines are notable for no longer recommending that PEP be provided in a number of situations where the “source partner” is known to be HIV+ and to have an undetectable viral load. These situations include unprotected vaginal intercourse, unprotected insertive anal intercourse and oral sex. But PEP is still recommended following unprotected receptive anal intercourse.

The guidelines are also notable for not recommending PEP in any situation in which the source partner is thought not to belong to a social group in which HIV prevalence is high, such as gay men or people from high-prevalence countries (such as those in sub-Saharan Africa). The guidelines also clarify that, due to the very low risk of infection, PEP is unnecessary following human bites or contact with a discarded needle.

(Unlike the UK and many other countries in the developed world, Canada has no national guidelines for the use of PEP for non-workplace exposure – such as unprotected sex, a condom breaking during sex, needle sharing or sexual assault –  although some provincial guidelines exist. As a result, PEP for non-workplace exposure is rarely promoted in Canada. On the other hand, PEP after workplace exposures – for example a health care worker who accidentally suffers a needle-stick injury – remains the “standard of care” and is widely used in this country.)

Yet, despite the growing body of evidence that having an undetectable viral load significantly reduces the likelihood of an infected person passing on the virus to an uninfected sexual partner, Canada has witnessed an escalation in the number of people prosecuted for allegedly exposing partners to HIV even if they had an undetectable viral load and/or were using protection such as condoms or engaging in a low risk activity such as oral sex.  Ontario is home to the majority of HIV-related prosecutions in Canada and is also one of the leading jurisdictions in the world when it comes to such prosecutions.

Part of the problem is that the law around HIV disclosure has never been legally defined. Rather, it comes from a 1998 decision of the Supreme Court that HIV+ people have a legal duty to tell a sex partner that they have HIV before they have sex if there’s a “significant risk” that they’ll pass on the virus to that person. This lack of clarity on what constitutes significant risk has meant that the police, Crown attorneys and lower courts have been inconsistent in how they interpret what sex acts, and under what circumstances, pose a significant risk of HIV transmission.

In last month’s Canadian Medical Association Journal, Julio Montaner, one of Canada’s and the world’s leading HIV medical doctors, along with colleagues from the British Columbia Centre for Excellence in HIV/AIDS called for the end of prosecutions for allegedly exposing sexual partners to the virus. “To put the burden on the person infected with HIV that they have to disclose when they may be on treatment or using a condom, or doing both, is really not appropriate,” Montaner told The Vancouver Sun. “Let me be clear, I think that people who behave irresponsibly, they need to be judged accordingly and there are laws to address those issues…but to have a policy that selectively targets HIV is discriminatory and discourages people from seeking out testing and treatment.”

All this will be coming under intense scrutiny next month, when the Supreme Court of Canada is to hear two appeals involving HIV non-disclosure. In both cases, one from Manitoba, the other from Québec, the accused are HIV+ and had consentual sex with their partners without disclosing their HIV status although they used condoms or were on ARV medication that kept the risk of transmission very low. In each case, the accused were acquitted by the provincial Courts of Appeal. However, prosecutors in both cases applied for an appeal before the Supreme Court.

So it was of particular concern that in September 2011, Ontario’s Attorney General indicated his government’s intention to file an application to intervene in the Supreme Court hearing. The government’s intent was to call on the Court to rule that people living with HIV must disclose their status before any sexual activity whatsoever – even in the case where there’s a negligible, effectively zero, risk of HIV transmission – and that not disclosing should be prosecuted as an aggravated sexual assault, which is one of the most serious offences in the Criminal Code.

It was especially troubling that the Ontario Attorney General‘s office took this position at the same time that it was engaged in ongoing discussions regarding the development of prosecutorial guidelines for allegations of HIV non-disclosure.

So it was good news to learn that, just before Christmas 2011, Ontario quietly withdrew its application to intervene before the Supreme Court. The government hasn’t released its reasons for this about-face, although it must be said that the governing Liberal party has just recently been returned to power following a provincial election where they gained a plurality of seats in the provincial parliament. The premier also appointed a new Attorney General who may have been instrumental in deciding against his predecessor’s decision to intervene.

However, the appeal before the Supreme Court will still be going ahead – it starts on February 8, 2012 – at which time the Court will be asked to define “significant risk”. Hopefully, in reaching a decision on the two cases before it, the bench will take into account current medical and scientific research about the risk of transmission and make a decision that’s compatible with scientific, medical, public health and community efforts to prevent the spread of HIV and to provide care, treatment and support for people living with HIV.

You can listen to an excellent debate about the current law – and recommended changes to it – in a podcast of the CBC Radio current affairs program The Current that was broadcast on December 21, 2011. In it Anna Maria Tremonti talks with Tim McCaskell, a long-time AIDS activist and person living with HIV, and Carissima Mathen, an associate professor of law at the University of Ottawa.

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