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Articles tagged with: Canadian HIV AIDS Legal Network


Doctors take a progressive stand on transmission risk and the laws on criminalization

Tuesday, 06 May 2014 Written by // Bob Leahy - Editor Categories // Current Affairs, Features and Interviews, Sexual Health, Health, Legal, Living with HIV, Opinion Pieces, Sex and Sexuality , Bob Leahy

Bob Leahy talks to Dr. Mark Tyndall about the consensus statement issued by 70 doctors/scientists outlining the likelihood of HIV transmission in an attempt to influence the status of Canadian law surrounding the criminalization of HIV nondisclosure.

Doctors take a progressive stand on transmission risk and the laws on criminalization

Dr. Mark Tyndall speaking at CAHR 2014 last week.

Last week at CAHR 2014 in St Johns, Newfoundland the most easterly city in North America was buzzing with breaking news of a promising development in the community response to the criminalization of HIV non-disclosure. For here at CAHR was released a consensus statement from seventy doctors saying that “current Canadian law is going too far and ignoring the science.  . . speaking out against the many unjust prosecutions against HIV-positive people that we are seeing in Canada, which have too often resulted in draconian sentences for conduct that posed no significant risk of transmitting the virus.” 

Dr. Mark Tyndall, one of the authors of the report - I’ve interviewed him before on the subject of criminalization - was frontman for the CAHR session and I interviewed him moments later.  The interview appears below.

Noteworthy is its tackling of the tricky topic of transmission risk where a positive partner has a low or undetectable viral load. Says the statement in particular (you can read the full text here) the risk associated with anal sex without a condom is ”likely negligible.”  

This expert opinion goes further than the recent CATIE article which uses the latest PARTNER study interim results to suggest that the risk from receptive anal sex is between 0 and 0.05% (Other studies - HPTN 052 - found an even higher reduction in risk for vaginal sex.) However, the authors of the consensus statement are quick to point out that the document is intended to influence the justice system rather than reflect prevention messaging standards.

We have always had trouble understanding the distinction and so I raised this with Mark Tyndall both on the floor of the conference and in the interview which follows. As always Tyndall, an affable and eloquent speaker, was happy to respond. And I should say at the outset that, like the Canadian HIV/AIDS Legal Network, we view the doctors’ statement as “a comprehensive review of the most recent and relevant scientific evidence” and that “the statement confirms that current Canadian law is going too far and ignoring the science.”               

Bob Leahy: Thank you for talking to Mark. You’ve just given a presentation on the consensus statement from seventy doctors around risk of HIV transmission.  How important do you think this document is?

Mark Tyndall: I think for me when I’m asked to be an expert witness it will be extremely helpful. It gives a strong message that we need to be honest with people about risk and for me going through all the literature emphasized that although we don’t want to undermine our prevention messages the actual risk per transmission is extremely low. Sometimes I don’t think we are being honest with people by telling them that any act of unprotected sex is guaranteed to result in infection.

So how difficult was it to arrive at a consensus on this?

We didn’t really get that problem. We got a couple of suggestions back but we didn’t get anybody who would refuse to sign it. A lot of the hard discussion though occurred with the six of us who were primarily responsible for it and some other external legal people as to how strong we could make the language. That was the hardest part.

You’ve been involved on the defence side on some criminalization cases. How hard is it to influence the legal process or even the Supreme Court, if it comes to that, based on the science of transmission with statements like the consensus one?

Well, the couple I’ve been involved in as an expert witness I think I’ve been helpful, so I think there is real role for that. I’m often surprised how aggressive and keen the prosecution seems to be about this but when you’re talking in front of a judge they don’t quite have their minds made up so much and I think expert opinion in these kind of documents is very helpful.

So it bolsters the worth of the testimony you can give because it’s just not your opinion but the work of seventy others?

Yes, I could still give this exact same opinion myself but I could be criticized as to whether I’m an expert or on what another person said that contradicts  . . .  

And they probably do.

And they do, yes. So this is very useful. The Crown would also have their expert so if it’s just me against them, it’s . . . me against them. With seventy endorsers of the document, I’m saying that’s much more powerful.

You were careful earlier not to have this interpreted in the form of prevention messaging, but isn’t there a little bit of a disconnect between the language you use, which I think for anal sex without a condom where the viral load is low is “likely negligible risk” and that of others who have reviewed the same science. Do you see a challenge that your statement may influence prevention messaging or vice versa?

Well, I think we have to be careful with that. Certainly we want to be honest. We are looking at the same data and we come to the same data conclusion.  It’s just that for the prevention messaging , it’s good to be on the cautious side so that if you are telling people the risk you need to give the message that it’s expected you take precautions and disclose where necessary. But if you are looking at someone who may be facing serious jail time it makes sense to take a less cautious approach. I think there is a happy medium and I think that they don’t really conflict.

Well, let me push you on that.  If you were talking to your patient, would you be using the same language as you’ve used here, or is it a different situation?

I think it’s a different situation. I deal with both sides of it so I want to tell people who want to be absolutely sure that HIV doesn’t get transmitted that there are steps you should take, but I also deal with a lot of what I call “the worried welll" and in those situations I try to calm them down and say “the risk is very, very unlikely that anything is going to happen to you.”.  So I think it’s situation by situation, and I don’t think there is a conflict. 

Excellent response.  Thanks Mark. And thanks for talking to Good luck with it.

You’re welcome Bob.