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South African judge criticises HIV criminalisation in Canada

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Justice Edwin Cameron

Canada is the world leader in criminalising people with HIV, according to Justice Edwin Cameron of the South African Constitutional Court.

Cameron, the first senior official in South Africa to publicly disclose his HIV-positive status, was in Toronto Friday evening to address lawyers and policy-makers at the Law Society of Upper Canada.  He spoke out against the growing trend in Canada of criminally prosecuting people who fail to disclose their HIV status.

Earlier this year, a court in Hamilton, Ontario became the first in the world to convict a man of murder for failing to disclose his HIV-positive status to his sexual partners, two of whom later died of AIDS.  Since then, criminal prosecutions have increased and the degree of charges being laid has been elevated.

In some cases, Toronto police have even issued “public safety alerts” with names and photographs of HIV-positive people who allegedly failed to disclose their status, asking their sexual partners to come forward.  Cameron likened this practice to a proposal by a Swaziland parliamentarian to brand people with HIV/AIDS on the buttocks.

HIV/AIDS educators across Canada have also criticised the criminalisation of HIV non-disclosure.  They say it’s counter-productive to their work because it encourages HIV-negative people to rely on others to prevent transmission.

This false sense of security could be especially dangerous since most cases of HIV transmission occur when an individual is unaware of their status, and therefore unable to disclose.

These criminal cases effectively place sole responsibility for HIV prevention on those who have been positively diagnosed, and absolve HIV-negative people of any responsibility for protection.  This runs counter to messaging that AIDS service organisations have tried to communicate to the public for years: that protection is everybody’s responsibility, regardless of their HIV status.

This appears to be the general consensus when it comes to other sexually transmitted infections.  The offence of knowingly transmitting venereal disease was repealed from the Criminal Code in 1985 on the recommendation of two federally commissioned reports.  Even the transmission of deadly diseases, such as the emerging H1N1 flu virus, is not criminalised in Canada.

“Unprotected sex always entails the risk of transmission,” Justice Cameron pointed out in his address.  This fact raises the question: if an individual consents to unprotected sex, do they consent to the risks that go along with it?

Not according to supporters of criminalisation.  In fact, they argue that criminal charges are necessary to protect women against infection from male partners.  After all, the high profile case of Johnson Aziga involved a man who had allegedly pressured his female partners to have sex without a condom.

Cameron suggested that cases like Aziga’s are a rare exception, where the use of criminal law may be justified.  But the growing trend of criminalising non-disclosure, he said, may do more harm to women in the long run.

The Canadian AIDS Society has long argued that women in heterosexual relationships face additional social barriers to using protection due to economic, social and physical power imbalances between men and women.  When women insist on using condoms, they face repercussions ranging from abandonment to violence.

“The subordination of women makes it difficult, if not impossible, for them to negotiate safe sex,” said Justice Cameron. “Far from protecting women, criminalisation endangers them.”

Since women are usually the first within a heterosexual relationship to be diagnosed with HIV, they are more likely to have the legal obligation to disclose.  If women face potential violence for insisting on safer sex, imagine the repercussions for disclosing an HIV-positive status to a partner.

Cameron maintained that the best way for people to help protect women from HIV transmission would be to fight for social and economic equality for women, thereby giving them the ability to negotiate safer sex in relationships.

But until the magical day when patriarchy is abolished, what do opponents of criminalisation advocate as an alternative?

In 2002, an advisory committee for Canadian health ministries convened a roundtable of doctors, lawyers, public health officials and people living with HIV/AIDS, to advise governments on appropriate responses to cases of non-disclosure.

They pointed to the HIV non-disclosure guidelines developed by the Calgary Health Region in Alberta as a framework to emulate.  While the criminal law is maintained as a last step for cases of extreme negligence, the Calgary model gives public health authorities a greater role earlier in the intervention.

Public health legislation is preferred over the criminal law by most HIV/AIDS experts because it focuses on prevention, not punishment.  It also has a less stigmatising effect, since the criminal law allows the police and media to publish names and photographs of people living with HIV under the guise of a “public safety alert.”

Of course, anyone who has had unprotected sex should be encouraged to get tested, regardless of who their partner was.  Wouldn’t that be a more effective public safety alert?

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