The CTN organizes a National network of researchers around thematic research Cores designed to support scientists in the generation of new concepts and study protocols. Co-led by Dr. Mona Loutfy (Toronto) and Dr. Catherine Worthington (Victoria), the Prevention and Vulnerable Population (PVP) Core research agenda is geared towards working collectively with communities and researchers to understand gaps in health services and to look for and evaluate interventions for decreasing HIV transmissions and mitigating disparity and vulnerabilities. 

“Meaningful HIV health interventions can take many forms beyond randomised drug trials and we want to encourage and support prevention and intervention research for populations that are vulnerable to HIV,” say Dr. Loutfy. Community-based research and cross disciplinary collaboration within the PVP Core provide an excellent opening for meaningful engagement and a solid basis for finding inclusive solutions grounded in community needs. “Our goal,” says Worthington, “is to ensure that the studies that come out of the PVP Core address research questions that communities’ support. We are working hard to forge partnerships beyond basic and clinical sciences to work successfully with vulnerable populations.” 

From the time the PVP was established it was decided to focus CTN resources on Aboriginal Peoples, but not to the exclusion of other vulnerable populations. Aboriginal populations are overly represented within HIV statistics in Canada and also overly represented within statistics highlighting other risk factors, including substance use issues within communities, social inequities resulting from the colonization process and stigma and discrimination. Physicians in some of Canada’s most affected provinces, including Manitoba and Saskatchewan, have argued that there is a huge clinical need in Aboriginal communities across the Prairies. Many of the patients they are diagnosing are presenting with late stage HIV, which results in major challenges for effective health management. In September 2010, the CTN formalized a partnership with the Canadian Aboriginal AIDS Network (CAAN) and this past year the PVP Aboriginal-CTN Working Group was established. The CTN also supported the development of an accredited online course for doctors and health care practitioners focused on community-based and culturally appropriate HIV treatment and care for Aboriginal Peoples. The course is open online at: https://www.mdcme.ca/ 

For the next five years the Core has prioritised research in three main areas. Two of them are within specific vulnerable populations; the first being research with and among Aboriginal peoples, and the second being men who have sex with men. The third priority topic is related to engagement and retention in care for people living with HIV. Retention and engagement is a broad research focus that’s relevant across CTN research Core interests, and encompasses and affects all key HIV populations in Canada.   

As part of a new initiative and in partnership with the University of Saskatchewan, the PVP Core is co-hosting a Rural Engagement and Retention in HIV Care Working Group meeting, taking place in Saskatoon in March 2013. The purpose of this meeting, which is funded by a Canadian Institutes of Health Research Planning Grant, is to bring together as many stakeholders as possible to identify the barriers, challenges and successes in HIV testing strategies, and to discuss how to link HIV patients from rural communities to care, with a focus on the unique issues faced by specific populations. “When we involve service providers, policymakers, communities and advocates in the research process, there is broader investment made in the research, and outcomes and results are hopefully acted upon by all parties involved,” says Worthington.  The goal of the meeting is to form a team to develop a grant proposal for research that would support targeted interventions. 

An inclusive approach to research requires a deep commitment from all parties and when it works well the rewards are significant and meaningful. Both Worthington and Loutfy emphasize that working together in collaboration across disciplines provides a platform for relevant and socially engaged research and an opportunity for deeper levels of understanding and respect. 

Dr Mona Loutfy, MD FRCPC MPH is the CTN Prevention and Vulnerable Populations Core co-Leader. She is currently an Associate Professor in the Department of Medicine at the Women’s College Hospital and heads the Women and HIV Research Program at the Women’s College Research Institute in Canada. She is also the President and Director at Maple Leaf Research adjoined to the Maple Leaf Medical Clinic, Canada’s largest private HIV practice. Focused on the clinical management of HIV infection in women, Loutfy’s work has brought forward innovations such as the Canadian HIV Pregnancy Planning Guidelines. 

Dr Catherine Worthington, PhD is the CTN Prevention and Vulnerable Populations Core co-Leader.

Currently, she is a professor at the School of Public Health and Social Policy at the University of Victoria in British Columbia. Her research focuses on HIV prevention, care and support services development. She has served on the CIHR HIV/AIDS Research Advisory Committee (CHARAC), and also acted as Social Sciences Track co-chair for the Canadian Association for HIV Research (CAHR). Worthington is a principal investigator with the CIHR Social Research Centre in HIV Prevention (SRC), and chairs the Education Committee of the Centre for REACH (Research Evidence in Action for Community Health) in HIV/AIDS.

This article first appeared in the OCS 2012 Newsletter, a publication of the Ontario HIV Treatment Network (OHTN). 

What research question is addressed by How Criminalization is Affecting People Living with HIV in Ontario?

This research project examines how people living with HIV (PHAs) perceive the law and the legal obligation to disclose their HIV infection status to sexual partners. It also analyses PHAs’ perceptions of the impact of high-profile media events and public perceptions of HIV.

Why is this question important?

Eighty-four percent of criminal prosecutions for alleged HIV non-disclosure to sexual partners have occurred in the six years spanning from 2004-2010. It is important to understand how this increase in prosecutions affects PHAs and how they interpret these laws.

How was the study conducted?

A series of questions on the law, disclosure, criminalization, and HIV were added to the questionnaires completed by participants of the Ontario HIV Treatment Network Cohort Study (OCS) (N=492) and the Positive Spaces, Healthy Places cohort study (PSHP) (N=442). Another 122 PHAs provided in-depth interviews. The data from these three sources were analysed to identify common themes and highlight the lived experience of the PHAs who participated. The sample of PHAs who participated was broadly representative of all PHAs in Ontario when compared by gender, age, HIV exposure category, and ethno-cultural origin.

What were the main results of the study?

PHAs were highly reliant on mass media for information about the law, disclosure, criminalization, and HIV. Health professionals were the next most important source of information to participants.

Most PHAs interviewed felt that current Canadian HIV disclosure and criminalization laws have unfairly shifted the burden of proof, such that, PHAs are guilty until proven innocent. Other themes that emerged from this research include:

• Given the power of the law, PHAs could be caught in a difficult he-said/(s)he-said situation of having to justify their actions;
• Disgruntled partners of PHAs have a legal weapon to wield against them, regardless of the facts; and,
• Women living with HIV are doubly vulnerable to criminalization laws, as the decision to use of prevention tools are not necessary made by women (i.e., male partners decide whether to use a condom).Ontario HIV Treatment Network (OHTN) Cohort Study 13

While the majority of PHAs reported a heightened sense of fear, anxiety, or vulnerability, because of criminalization laws, others felt that the climate of acceptance is still better than in the early days of the epidemic.

Most PHAs (72%) agreed that someone with HIV who has unprotected vaginal or anal sex and does not tell their partners that they are HIV-positive should, in some circumstances, be charged with a crime; but that having protected sex should not trigger a penalty. These views were consistent across respondents regardless of gender, sexual orientation, or ethno-cultural background. Only education affected the overall opinion on the issue of disclosure and punishment, with more educated people holding less punitive views.

Regarding their own disclosure practices, 45% of people filling out the OCS survey said they did not have an HIV-negative partner or a partner whose HIV status they did not know in the last six months.  Another 36% told all their partners that they were HIV-positive.  The remainder disclosed to some but not others, dropped hints or felt out partners’ view on HIV, or presumed it was not necessary to disclose.

What do the study results mean for people living with HIV?

This study identifies gaps in coordination amongst public health and AIDS service organizations (ASO) with respect to meeting educational needs and providing appropriate support to PHAs around law, disclosure, criminalization, and HIV. Currently the onus is on PHAs themselves to navigate this complex system, and filter out the many influences of the media.

Where can I find the full-length publication of this study?

The article is available online  here. 

Adam BD, Corriveau P, Elliott R, Travers R, English, K, Globerman, J, Bekele, T. (2012). How Criminalization is Affecting People Living with HIV in Ontario. Toronto: Ontario HIV Treatment Network (OHTN).

Published online: October 2012

This article first appeared on the website of Pacific AIDS Network here. Republished with permisision of the author. Folllow PAN on twitter at @PAN_CBR 

Moving research on new “biomedical” HIV prevention technologies into practice

By James Wilton

Recent research findings have improved our understanding of HIV transmission and prevention and could change the landscape of our response to the HIV epidemic. In the past few years, several new HIV prevention approaches, such as post-exposure prophylaxis (PEP), pre-exposure prophylaxis (PrEP), and the use of antiretroviral treatment as prevention, have been found to reduce the risk of HIV transmission. These new strategies are often referred to as new “biomedical” HIV prevention technologies, or NPTs.

If moved into practice in an appropriate way, these new approaches could have a dramatic impact on the HIV epidemic in Canada and other parts of the world. However, translating this research into a reduction in new HIV infections within the communities we work with will be challenging. Community-based organizations (CBOs) – through programming and research – will have an important role to play in understanding these challenges, overcoming them, and effectively implementing these approaches.

Engaging people and communities in new HIV prevention approaches

At the most basic level, we know that the more people in a population who use a specific strategy, the more HIV transmissions they can potentially prevent. The number of people who use a strategy, often referred to as uptake or adoption, will depend on a number of factors, such as awareness (do people know about it?), acceptability (do people want to use it?) and availability (can people access and afford the technology if they want to use it?).

The impact of these strategies will also depend on “who” in a population uses them. More HIV transmissions will be prevented if the strategies are adopted by individuals who are at highest risk of HIV transmission, such as those who don’t use condoms consistently or share injection drug use equipment.

Focusing uptake among those at highest risk may be important for another reason. There is a concern that some people using these new approaches may feel a false sense of security and increase their risk behaviour, such as using fewer condoms or having sex with more partners (a concept known as risk compensation or behavioural disinhibition). Since none of these new strategies are 100% protective, this could potentially offset some of the benefit of NPTs and limit the number of HIV infections they prevent. However, the potential impact of risk compensation will be lower when used by people who are already at higher risk of HIV transmission.

Community-based organizations will play a key role in engaging individuals and communities and facilitating the appropriate uptake of these technologies. This will involve:

• Community mobilization to build readiness for new approaches and address barriers that may affect their acceptability, such as stigma and social, cultural, and political norms.
• Outreach and educational campaigns to improve awareness of these strategies, including information on who they are appropriate for and where they can be accessed, particularly among those at highest risk for HIV transmission.
• Accurate risk assessments for those who are interested in using these approaches and, if appropriate, referral to locations where they can be accessed.
• Community planning to ensure NPTs are provided in a way that respects human rights and supports informed decision making by the people using them.
• Advocacy to ensure the technologies are available and affordable.

Community-based research (CBR) will be essential to gain a better understanding of the acceptability, awareness and availability of these technologies in the community, the barriers to adopting them, and the characteristics of those who are using them.

Packaging new approaches with other strategies and supports

Among those who do use these strategies, what will influence the effectiveness of NPTs at reducing HIV incidence?

How consistently and correctly these strategies are used will be important. Research shows that these new approaches – such as post-exposure prophylaxis (PEP), pre-exposure prophylaxis (PrEP), and the use of antiretroviral treatment as prevention – are much less protective if not used consistently. Correct use means different things for different strategies. However, as none of these new approaches are 100% protective, correct use generally means that these new approaches are combined with, instead of replace, existing HIV prevention strategies.

Furthermore, the presence of certain biological factors that are known to increase HIV risk, such as sexually transmitted infections (STIs), may reduce the effectiveness of these new approaches. Therefore, correct use of these strategies also means combining them with STI prevention, testing, and treatment services.

In research studies and clinical trials, these NPTs have been credited with dramatic reductions in HIV incidence and this has generated a lot of excitement. For example, the HPTN 052 study found that antiretroviral treatment reduced HIV incidence among heterosexual serodiscordant couples by 96%.

However, we may not see the same large reductions in incidence in populations using these strategies in the “real world,” outside of a clinical trial. In clinical trial settings, participants are provided with ongoing prevention and support services including free condoms, HIV testing, STI testing and treatment, and intensive adherence and risk-reduction counselling. All of these services help to create “ideal” conditions that can maximize the impact of an HIV prevention strategy on HIV incidence. These new approaches may be less effective outside of a clinical trial if they are not provided in combination with these additional support services.

Community-based organizations will play an important role in packaging new prevention approaches with additional strategies and supports. This will include:

• Adherence support to help people integrate these strategies into their daily lives and use them consistently.
• Education on how to use the strategies correctly, including information on their advantages and disadvantages compared to existing approaches and the factors that may reduce their effectiveness.
• HIV prevention and risk-reduction counselling to help people understand their HIV transmission risk while they are using a prevention technology and to help them adopt additional HIV and STI prevention strategies. This will also need to include linkages and referrals to other services needed by people at risk of HIV infection and transmission.

Again, community-based research can play an important role in providing  insight into how people are using these strategies in the “real world” and the barriers to using these strategies consistently and correctly.

The role of CBOs and CBR in the changing HIV prevention landscape

The HIV prevention landscape is changing and CBOs have an important role to play in ensuring NPTs are used by the “right” people, at the “right” time, in the “right” context, and in the “right” way.

However, there is an increasing concern that the introduction of these technologies, particularly those based on antiretrovirals, will “medicalize” HIV prevention and reduce the role of CBOs in the response to the HIV epidemic. This is because most “biomedical” NPTs can only be obtained from a healthcare provider and need to be combined with ongoing medical services, such as laboratory and clinical monitoring, HIV testing (in the case of PEP and PrEP), and STI testing and treatment. Therefore, the worry is that these new “biomedical” approaches will shift the setting of HIV prevention from the community to the clinic.

In reality, it’s clear that these new prevention approaches are not exclusively “biomedical” and need to be packaged with several non-clinical services in order to prevent risk compensation, promote their appropriate uptake and sustained use, and ensure they are effective outside of a clinical trial setting. These are services that many healthcare providers do not have the time, knowledge, or expertise to provide effectively and, therefore, represent a gap that CBOs need to fill.

Moving forward

Dr. Kevin Fenton of the Centers for Disease Control and Prevention (CDC) in the United States gave a presentation at the 2012 International AIDS Conference in Washington where he discussed the implications of this new research for CBOs. He called upon CBOs to adapt to the changing HIV prevention landscape by:

• Learning new skills (improving their science base and understanding of clinical trial results).
• Developing new clinical alliances (improving their ties with organizations and institutions where these prevention technologies can be obtained).
• Providing new clinical and prevention services (offering HIV and STI testing, adherence support, and risk-reduction support).
• Promoting the uptake and correct use of these technologies (developing accurate, tailored, context-specific information; ensuring messages reach their target populations through a variety of different mechanisms, such as peer–peer outreach).

James Wilton is the Coordinator of CATIE’s Biomedical Science of HIV Prevention Project, he can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

This article first appeared on the website of CATIE  here.  

Une version française est disponible ici. 

Recent advancements in our understanding of HIV transmission, treatment, prevention and testing are changing the landscape of our response to HIV and generating a significant amount of optimism. The buzz at the International AIDS Conference this past July in Washington D.C. was that we may now be able to achieve an ‘AIDS-free generation’ where first, no one will be born with the virus; second, that as people age, they will be at a far lower risk of becoming infected than they are today; and third, that if they do acquire HIV, they will get treatment that keeps them healthy and prevents them from transmitting the virus to others.

Similarly, the United Nations AIDS organization has launched a ‘Getting to Zero’ campaign for this World AIDS Day, December 1, signifying the aim of getting to zero new infections, zero AIDS-related deaths, and zero discrimination.  

There are many reasons why we should feel these commendable goals can be achieved. But there are also significant challenges that need to be addressed before we get there.

New understanding about HIV

First, a word about those things that give us confidence.

We now have newer medications for people living with HIV that are easier to take and have fewer side-effects, thereby making HIV treatment more manageable. These medications also allow people living with HIV to have a near-normal life expectancy. We also have a much better understanding of the importance of starting treatment earlier in order to achieve better health outcomes.

Treatment can also help prevent the transmission of HIV. Research shows that people living with the virus who are on successful antiretroviral therapy and have a fully suppressed viral load (undetectable) are less likely to pass HIV onto others.

Due to these advancements in our understanding of the virus, treatment guidelines now recommend that people living with HIV begin antiretroviral therapy as soon as they are ready after diagnosis.

The importance of early detection

To complement the uptake of early treatment, we have also made progress in developing new testing technologies and strategies that allow us to detect HIV earlier and faster than ever before, allowing HIV-positive people to learn about their status much sooner after becoming infected. 

Early diagnosis is crucial to our success in preventing HIV transmission for three major reasons.  First, it may help identify people during the first few months after HIV infection when their viral load and risk of HIV transmission is at an all-time high. Second, it gives newly diagnosed individuals the option to start treatment earlier. And lastly, the majority of people diagnosed with HIV take active measures to reduce their risk of passing HIV on to others.

New prevention approaches

Although condoms and clean needles are the backbone of our prevention efforts, we are learning about additional prevention tools that can also be used. We now know that the same drugs used to treat HIV can be used by HIV-negative people to help reduce their risk of an HIV infection. These preventative approaches are known as post-exposure prophylaxis (PEP) and pre-exposure prophylaxis (PrEP). While PEP is the standard of care for occupational exposure to HIV, its availability for non-occupational exposures and its cost vary greatly across Canada. Although PrEP is not currently approved for use by Health Canada, some doctors may already be prescribing it to their patients (known as ‘off-label’ use).These new prevention approaches are promising options for HIV-negative people who are at a high risk of getting HIV.

HIV drugs, in combination with other strategies such as not breastfeeding can also help eliminate the transmission of the virus from an HIV-positive mother to her newborn child.

Challenges we still face

Despite these advancements, translating them into a generation without AIDS or without new HIV infections remains challenging. The hurdles we continue to face include limited financial resources applied to HIV prevention and treatment, and the barriers people living with and at-risk of HIV face when accessing HIV-related services.

Additionally, people living with HIV can be criminally prosecuted for not disclosing their HIV status to their sexual partners, which can discourage them from wanting to know their status, and thereby opting out of getting tested.

Stigma, discrimination, and poverty can make it difficult for marginalized populations to access services, which explains why some populations are more strongly affected by the HIV epidemic. The reality is that a number of Canada’s communities have a high prevalence of HIV. According to the latest estimates (2008) by the Public Health Agency of Canada, gay men and other men who have sex with men represent a majority (51 per cent) of people living with HIV. People who use injection drugs represent 20 per cent, people from regions where HIV is endemic (such as Africa and the Caribbean) represent 14 per cent, and Aboriginal people represent eight per cent of the total HIV epidemic in Canada.  

Where do we go from here?

It’s clearer than ever that HIV prevention, testing, care and support, and treatment are all mutually reinforcing elements of an effective response to realizing an ‘AIDS-free generation.’ At CATIE, we feel these advancements call for an ‘integrated approach’ to HIV treatment and prevention. Such an approach will be discussed, for example, in September, 2013, when CATIE will host a forum that will explore the recent developments in HIV and determine ways to integrate HIV treatment and prevention for us to move forward in an effective way.

While we are still years away from an ‘AIDS free generation,’ we appear to be on the right path. It only takes a look back 30 years ago at the despair we once felt in the face of this unknown disease to see how far we’ve come. 

Let me start by qualifying my level of expertise. I have been a lawyer, but not for more than ten years, so I am reading these two judgments with a strange mix of past legal training, current political commitment and the often paranoid eye of someone who could be directly affected by it. If you're willing to swallow that (couldn't help myself), then feel free to read on and agree or disagree with me. For more rigorous legal analysis, I would suggest the Canadian HIV/AIDS Legal Network, the Coalition des organismes communautaires québécois de lutte contre le sida  or the HIV/AIDS Legal Clinic of Ontario. 

Background (simplified version) 

The first Supreme Court of Canada ruling that started shaping the legal response to HIV came in the Cuerrier decision in 1998. The facts of that case are relatively important, as they come from a time before HAART (and therefore before we had conceived of an undetectable viral load) and they involved a man who did not use condoms with his partners (which limited what the court could officially say with respect to condom use). 

The court constructed a scenario in which the absence of disclosure of HIV positive status meant that the uninformed partner could not give consent to the act, and a sexual relation without consent is a sexual assault, or at least an assault. Add to this the likelihood of an infection leading to serious bodily harm, should it occur, and the offence becomes more serious, like aggravated assault or aggravated sexual assault. 

The court's test in Cuerrier boiled down to this: if the act was one which could involve a significant risk of HIV transmission (bodily harm), the non-disclosure of HIV status negates the consent of the other person and the criminal law is engaged. The problem we would later discover was the lack of clarity about where the line should be drawn on what constitutes a significant risk. Would condoms reduce the risk below the level of "significant"? A minority version of the judgment written by Justice McLaughlin speculated that condom use might do that, but because Mr. Cuerrier had not used condoms and a majority of the members of the court didn't sign on to Justice McLaughlin's reasons, this speculation didn't have the force of law. 

More recently, we have started asking whether an undetectable viral load might also reduce the risk below the level of "significant", especially considering how our public health authorities are in many cases trumpeting the virtues of treatment as prevention, and for this very reason. 

The uncertainty played itself out in conflicting decisions by various courts across the country, leading up to the two cases that were decided by the court on October 5th. 

The cases, Mabior and DC (equally simplified) 

Mr. Mabior was charged with nine counts of aggravated sexual assault involving non-disclosure of his HIV status to multiple partners. What was interesting from a legal point of view, given the questions in the community, was that he sometimes used condoms and his viral load was sometimes undetectable, giving us facts that could lead the courts to clarify some of these issues for us. None of Mr. Mabior's partners was infected with HIV. Convicted on six counts at trial, the Manitoba Court of Appeal reversed four of the convictions, where either he had used a condom or his viral load was undetectable. The Crown appealed to the Supreme Court. 

Ms. DC was charged with aggravated assault and aggravated sexual assault after a single sexual encounter prior to disclosure of her status to her partner. Her partner filed his criminal complaint in the context of his own trial for conjugal violence following their breakup four years after the alleged offence that she was charged with. (Note that he was convicted of conjugal violence, but given an absolute discharge after his complaint about possible exposure to HIV transmission was filed against her. I could go on about this, but we would be getting off track, so I will restrain myself.) She said that a condom was used, and he said not. He was not infected with HIV. Convicted at trial after the judge did some fancy footwork to describe what would allow him to conclude that no condom was used, the Court of Appeal of Québec reversed the conviction based on the fact that DC's viral load was undetectable at the time of the alleged offence, but allowed the trial judge's conclusion about the absence of the condom to stand. The Crown appealed to the Supreme Court of Canada. 

Reaction to the Supreme Court decision 

It's an odd thing to watch a complicated Supreme Court decision come out and to watch the wide range of reactions to it. The media knew it was coming out and were ready to pounce on various kinds of spokespeople for comment on what it meant. The interpretations were equally widely varied. 

Some people living with HIV and some public health experts and HIV doctors hailed the decision as a step forward. The coalition of community groups that had intervened at the Supreme Court called it "unjust" and "a major step backward for public health and human rights". You can't get much more mixed than that, so I thought it might be useful to pick apart the decisions to see which parts might be good or bad, in the eyes of someone living with HIV and also committed to working for the respect of our rights, with those limits to my interpretive skills that I outlined at the beginning. 

The public reaction to this, as gauged by the usual deluge of comments on the web sites of various news organizations, is not for the weak of heart. It can be downright scary to read some of those comments, and they betray some profound misunderstanding of HIV and HIV transmission. It would be just sad if it were not also scary. 

A new test 

The court did not sweep away the Cuerrier rule, but recognized that there were some problems with its clarity and went on to propose a new way of assessing whether there was a "significant risk of serious bodily harm". They did this by proposing an assessment of the "realistic possibility of transmission of HIV" as a way to ensure that the bar would not be set too high or too low, considering the seriousness of HIV infection. They propose an assessment of the degree of harm and the risk of transmission, which are inversely related: the more harmful the disease, the lower the risk of transmission that would be necessary to engage the responsibility to disclose. While being clear that the cases before it did not concern other sexually transmitted infections, the court did suggest that most of those would not be considered as serious as HIV, so the risk of transmission would have to be higher to engage that same responsibility to disclose. 

Still vague for you? They go to provide even clearer guidance. Paragraph 94 of the Mabior decision asserts that, as a general rule, a realistic possibility of transmission of HIV would be negated by a low viral load (as opposed to undetectable viral load) at the time of sexual relations AND the use of condom protection. The court goes on to recognize low viral load as being below the threshold of 1,500 copies per millilitre. So with those two elements, there is no criminally enforceable requirement to disclose status if not asked. 

What's good about this decision? 

Well, we have some clarity. A low viral load (<1,500) plus condom use will relieve you of the criminally enforced responsibility to disclose to a partner who doesn't ask. (I add the "who doesn't ask" on my own, because if a partner asks and is lied to, that is still fraud which would negate the person's consent.) We also have the Supreme Court of Canada asserting that in such a situation, the risk of transmission of HIV is merely speculative and not realistic, which is a nod, however cautious, to the science of HIV transmission and prevention. 

Drawing the line at a viral load of 1,500 was interesting. The court clearly understood the concept that even detectable but low viral loads reduce the chances of transmission and that "undetectable" can be in evolution (in Québec we went from viral load test sensitive to 500 copies to 50 copies in 1999, and then to 40 copies in 2010) and avoided drawing a moveable line that could become more onerous for people living with HIV over time. This also takes the drama out of the small "blip" in viral load, at least in terms of criminal responsibility. 

Another positive aspect is to be found in the DC decision. While the definition of the "realistic possibility of transmission of HIV" test is outlined in the Mabior decision, the court in DC has a few words to say about the proof of the absence of a condom. The only evidence presented about the use of a condom came from the accused and the complainant, who contradicted each other and who were both characterized as "not credible" by the trial judge. He had to find another source of corroborating evidence to draw a conclusion. He found that by speculating that a brief note in DC's medical file from seven years earlier, when she had asked what would happen if a condom broke, was proof that she had lied to her doctor and that no condom had been worn. The Supreme Court said that this "speculative edifice the trial judge built" is not evidence that no condom was used. That might have some impact on the elements of future accusations going forward, but it might also be so specific to this case that it will have none at all. 

On the other hand… 

We were really hoping for a judgment that would say that condom use OR undetectable viral load would relieve a person of the duty to disclose, but we got an AND. This might have been the Supreme Court being especially cautious about transmission and dramatic about the impact of HIV even in 2012. I'm not one to lack caution or to underestimate the impact of HIV, even today, but I do tend to see this as a "belt and suspenders" situation (see my article on that here). All of which to say that I do still think the burden on people with HIV is too high, and likely because of the fears of the common person about HIV. When some news organizations announced this from the other perspective, focusing on the situations where disclosure is not required, and their readers seem generally outraged, which is scary and depressing for me. 

This has to be a little worrisome for public health authorities and those engaged in prevention activities, too. After 30 years of "use a condom" messaging. the Supreme Court seems to be saying that condoms alone are not enough. While I think, as noted above, that this is overly cautious, I wonder what the prevention impact will be. 

The court does not take judicial notice of the effectiveness of condoms. Taking judicial notice of something means that it is a fact so notoriously recognized that it does not need to be proven in court. They do recognize that the virus does not pass through latex, but accept the expert testimony from the Mabior trial that human error and breakage reduce the rate of effectiveness to about 80%. This could be difficult to have to prove every time and the high assessment of the human and product failure probably led to the double requirement. 

Another big danger that I can see is the possible evolution of the treatment as prevention approach toward obligatory treatment. For people who are not on treatment because their current CD4 levels do not indicate treatment for their own health according to the guidelines, low viral load as defined by the Supreme Court is not necessarily a reality. They will not be relieved of the obligation to disclose by using a condom, so they will either have to disclose their status or start taking treatment early and use a condom. 

What I didn't see anywhere in the judgment was any responsibility on the part of the partner of the person living with HIV. Not that I expected it: the criminal law doesn't really have room for the concept of "shared responsibility" that has long been the message of public health and which is well-known in civil law. No, the whole responsibility for HIV prevention is again falling on the shoulders of people living with HIV and I guess everyone else will be protected by the criminal law and not their own sexual habits. 

I'm sure there are people who will read this who will wonder what is the big deal with disclosure. I have gone on too long here already, so I promise to share my thoughts on disclosure in a future post. 

The Supreme Court drew a clearer line for us. It just wasn't where we thought it ought to be.