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 CATIE website here.

Une version française est disponible ici. 

The widespread availability of potent combination anti-HIV therapy (commonly called ART or HAART) has greatly reduced deaths from AIDS-related infections in Canada and other high-income countries. ART improves the health of HIV-positive people by reducing the production of HIV and allowing the immune system to begin to repair itself. The power of ART is such that researchers and doctors increasingly expect that a young adult diagnosed today who begins ART and has minimal pre-existing health conditions will have a near-normal life span. Faced with this good news, more HIV-positive women are considering having children.

Healthy babies

An essential part of preventing mother-to-child transmission is HIV testing for women who are thinking of having a baby or who are pregnant.

Although HIV can be transmitted from mother to child (this is called vertical transmission), the risk of transmission can be reduced to less than 1% with the following steps:

• prenatal counselling and care
• taking ART during pregnancy so that viral load is as low as possible
• having intravenous AZT (zidovudine, Retrovir) during delivery of the baby
• Caesarian section for delivery (when medically necessary)
• a short course of anti-HIV medicines for the baby after birth
• use of formula rather than breastfeeding (HIV can be transmitted via breastfeeding)
• not pre-chewing food for the baby when solids are introduced. Adults who have both HIV and oral infections can inadvertently cause a small amount of blood to leak and be present in the food that they chew. This blood can contain HIV and if the pre-chewed food is fed to the infant, it could possibly transmit HIV.

Without ART, the risk of vertical transmission can be at least 26%.

Testing

In 1997, researchers in Ontario estimated that rates of HIV among pregnant women were greater than they were in the late 1980s. After consulting with stakeholders about this situation, the Ontario Ministry of Health recommended that beginning in January 1999 counselling and HIV testing be offered to pregnant women. The recommended approach to this testing was called “opt-in,” which meant that HIV testing was only done if requested by a physician and where counselling and informed consent for such testing were first obtained.

Promoting the policy

To help educate health care providers about the new testing policy, the Ontario Ministry of Health supported the following interventions that were carried out over several years:

• physicians received pamphlets, posters and new lab testing forms
• physicians who ordered lab testing for hepatitis B virus, syphilis or rubella but not HIV were sent a memo with the test results reminding them that they could also order tests for HIV
• public health units regularly received letters about the importance of prenatal HIV testing
• physician bulletins published articles encouraging doctors to offer prenatal HIV testing
• the Toronto Department of Public Health trained health care workers about HIV testing
• posters and pamphlets about HIV testing aimed at women of childbearing age were sent to doctors’ offices
• a media campaign to increase awareness of HIV in pregnancy targeted to different ethno-cultural groups

Researchers at the University of Toronto, the Hospital for Sick Children in Toronto and Public Health Ontario recently collaborated to assess trends in HIV testing among pregnant women in Ontario, reviewing data collected between January 1999 and December 2010.

Key findings

Overall, HIV testing among pregnant women significantly increased over the 11 years of the study, as follows:

• 1999 – 40% of pregnant women were tested for HIV
• 2010 – 98% of pregnant women were tested for HIV

When researchers assessed testing rates shortly after specific periods of time when certain strategies—such as encouraging physicians to offer HIV testing to pregnant women—were implemented, they found that such strategies subsequently resulted in greater rates of testing.

In general, HIV testing rates were lower among older women compared to younger women.

Rates of HIV testing among pregnant women in Ontario varied, with some public health units reporting rates of 92% and others 99%.

During the study period, 455 pregnant women tested positive for HIV. Of these, nearly 60% were diagnosed with HIV for the first time because of prenatal testing.

Pregnant women aged 30 to 34 years were more likely to be HIV positive than women in other age groups.

Bear in mind

As Ontario has a universal medical insurance program, the findings from this study may be useful for other places that have a similar health insurance system, such as Australia and Western Europe.

The Ontario prenatal HIV testing program has helped to prevent many cases of vertical transmission.

The study group noted that further research is needed in Ontario (and likely the rest of Canada) to understand why some pregnant women at high risk for HIV are not tested. The group stated that it is possible that some of these women may not have received prenatal care because “they arrived in Canada shortly before delivery or for other reasons,” and so they did not receive screening for HIV. Whatever the reason(s) for not being tested, such research will be important if Ontario is to keep the number of HIV-positive babies born in this province as low as possible.

Resources

Society of Obstetricians and Gynaecologists of Canada

Canadian HIV Pregnancy Planning Guidelines

Recommendations for Use of Antiretroviral Drugs in Pregnant HIV-1-Infected Women for Maternal Health and Interventions to Reduce Perinatal HIV Transmission in the United States

Information for Women who are Diagnosed with HIV during Pregnancy

Pregnancy Planning Information for HIV+ Women and Their Partners

Information for HIV+ New Moms

Pregnancy Planning Information for HIV+ Men and Their Partners

Acknowledgement

We thank Robert Remis, MD, for his research assistance, helpful discussion and expert review.

 —Sean R. Hosein

REFERENCES:

Remis RS, Merid MF, Palmer RW, et al. High uptake of HIV testing in pregnant women in Ontario, Canada. PLoS One. 2012;7(11):e48077.

Lohse N, Hansen AB, Pedersen G, et al. Survival of persons with and without HIV infection in Denmark, 1995-2005. Annals of Internal Medicine. 2007 Jan 16;146(2):87-95.

Lohse N, Hansen AB, Gerstoft J, et al. Improved survival in HIV-infected persons: consequences and perspectives. Journal of Antimicrobial Chemotherapy. 2007 Sep;60(3):461-3.

Loufty MR, Margolese S, Money DM, et al. Canadian HIV Pregnancy Planning Guidelines. Journal of Obstetrics and Gynaecology Canada. 2012 Jun;34(6):575-90.

Panel on Treatment of HIV-Infected Pregnant Women and Prevention of Perinatal Transmission. Recommendations for Use of Antiretroviral Drugs in Pregnant HIV-1-Infected Women for Maternal Health and Interventions to Reduce Perinatal HIV Transmission in the United States. Sep. 14, 2011; pp 1-207.

Loutfy M, Raboud J, Wong J, et al. High prevalence of unintended pregnancies in HIV-positive women of reproductive age in Ontario, Canada: a retrospective study. HIV Medicine. 2012 Feb;13(2):107-17.

Centers for Disease Control and Prevention (CDC). Premastication of food by caregivers of HIV-exposed children—nine U.S. sites, 2009-2010. Morbidity and Mortality Weekly Reports. 2011 Mar 11;60(9):273-5.

Gaur AH, Dominguez KL, Kalish ML, et al. Practice of feeding premasticated food to infants: a potential risk factor for HIV transmission. Pediatrics. 2009 Aug;124(2):658-66.

Ivy W 3rd, Dominguez KL, Rakhmania NY, et al. Premastication as a route of pediatric HIV transmission: case-control and cross-sectional investigations. Journal of Acquired Immune Deficiency Syndromes. 2012 Feb 1;59(2):207-12.

In my line of work, addressing women’s HIV prevention needs and advocating for increased access to HIV specific information for women throughout my community is my aim. It is also the aim of the 18 other Women’s Community Development Coordinators working in AIDS Service Organizations across the province. Collectively, we make up the Women’s HIV/AIDS Initiative, funded by the Ontario Ministry of Health and Long-Term Care. Our Initiative is a response to the growing rates of HIV among women and the need for a coordinated effort to help build the capacity of local organizations to respond to women and HIV/AIDS issues.

Women now account for a significantly larger proportion of people living with HIV and AIDS in Canada, according to A Meta-Ethnographic Synthesis conducted by Jacqueline Gahagan and Christina Ricci. Every year in Ontario, 300 women test positive for HIV and women now account for 25% of all new HIV infections in Canada every year.

These statistics make me think. They make me think why, after 30 years of the virus are women’s rates increasing? Why, after 30 years of the virus are we only just realizing the impact the social determinants of health have on infection rates for women? And why, after 30 years of the virus, are we only focusing on women’s prevention needs now?

HIV/AIDS Prevention for Women in Canada: A Meta-Ethnographic Synthesis, written by Jacqueline Gahagan and Christina Ricci, looks at women’s vulnerability to HIV infection and reviews qualitative literature to examine HIV prevention efforts aimed at women in Canada with the intention of generating a synthesized understanding of both the implicit and explicit conceptual approaches that have been expressed in the literature; provide a synthesis of information related to the effectiveness of HIV prevention initiatives; and produce new knowledge that can be used to improve the effectiveness and efficiency recommendations related to future HIV prevention research areas and researcher roles based upon the identification of wise practices and gaps in existing knowledge (Gahagan and Ricci, 2011).

I highly recommend that anyone interested in this topic read the full report. It’s very informative and highlights key aspects of HIV prevention that should be incorporated in order to positively influence women’s risk behaviours and provide services specific to their unique needs. There are a few points within the document, specifically regarding their conclusions and recommendations, which I’d like to highlight.

• "HIV prevention research, at both the primary and secondary prevention levels, must actively involve women living with or affected by HIV from diverse communities. Given the long absence of women actively engaged in all stages of HIV prevention research, it is crucial that the next generation of HIV prevention initiatives considers women’s HIV-related needs in an effort to ensure prevention research and resultant interventions remain in keeping with women’s complex and dynamic experiences in relation to HIV”

When I read this information in the report, it immediately made me think of the GIPA/MIPA principles our agency, along with other ASOs, work towards. Involving individuals living with HIV in meaningful and participatory ways ensures that work and programming being created addresses their needs and respects their individuality. With women being a relatively new target population for HIV programming and prevention, we should be making every effort to include the voices of positive women as we build and create new resources and programming which aims to positively affect their health. 

•  “There is a need for greater recognition of the complexities of women’s lives and identities and the cumulative impact of race, class, age, immigration and colonialism on the unequal distribution of HIV in Canada”

Often times when people think of their health, they think of their physical health, when really, health encompasses an individual’s social, physical, and mental well-being. Women face life conditions and health issues specific to their biology and social circumstances. Biological, economic and social differences between women and men contribute to differences in health risks, health services use, health system interaction and health outcomes. Knowing that these differences exist, we need to make an effort to provide women with prevention needs that address their specific risk factors and social circumstances. 

• "There is a lack of accessible and appropriate prevention information for diverse communities of women in Canada. It is crucial that responses to the HIV/AIDS epidemic among women must begin with an understanding of the unique social, cultural and economic issues facing them”

Throughout the report, issues of social and cultural backgrounds are identified as barriers for women accessing health and social services. In a country as diverse as our own, it is important that we ensure all populations have access to health care that addresses their individual health needs. Also noted in the report was the disproportionate risk of HIV infection for African, Black, Caribbean, and Aboriginal women. We need to focus on providing these groups with culturally appropriate programming to ensure they have access to prevention messaging, information and support to prevent HIV infection rates from increasing any more than they already have.

The report does a great job of illustrating the need for HIV prevention initiatives to move away from a biomedical model and shift towards a model that addresses the social determinants of health and their complexities. It was reaffirming for me to hear that the work and collaboration I am doing in my own community with other service providers is helping to address the concerns brought forward in the report. Enhancing public education, partnering with other service providers, and reducing barriers for HIV testing need to be a priority to reduce the number of women becoming infected with HIV. The WHAI works with service providers working with women the tools they need to ensure this education and support is available. 

Women’s HIV risk factors are complex and come with their own unique root causes.

If there’s one thing I’ve learned working in this field, it’s that the factors contributing to HIV transmission are multi-layered, and our best approach at addressing this disease is to ensure we are working collaboratively with other health providers to make sure we reach each one of these facets of health. 

As part of the ongoing AIDS ACTION NOW! POSTER/virus project, which will continue with a new series of posters in 2012, Alex McClelland of AIDS ACTION NOW! and Mikiki, the artist (in collaboration with Scott Donald) behind the provocative:  “I Party, I Bareback, I’m Positive, I’m Responsible”  poster, sat down to chat about the HIV community’s response to the project, and examined together what being ‘responsible’ really means for people living with HIV 30 years into the epidemic.

Alex: The driving intention behind the POSTER/virus project was to provoke constructive discussions around some of the complex issues facing the HIV response today. As the co-curator and coordinator of the POSTER/virus project with AIDS ACTION NOW! I wanted us to use these works as a catalyst to promote dialogue on things we are often not allowed to talk about in the HIV response… like living with HIV and AIDS while actively claiming a sexual identity. We realized that this is still very much a challenge. So let’s talk about the initial online and broader cultural reaction within the HIV response to your poster and the project. While overall the project got a lot of praise and did provoke constructive dialogues, there were a number of reactions which were very angry and negative. Also, AIDS Community Care Montreal held a community forum to discuss the Facebook controversy. Can you talk first about your reaction to the reception of your work and our project?

Mikiki: One of the things we saw that was common was the silencing of our voices as those who are from the second wave of people who contracted HIV. Silencing through trumping with past lived experience, but like trumping with trauma. Those responses were informed by people having a really traumatized experience of their lived history as part of the HIV/AIDS epidemic, and this poster really brought up a whole bunch of like really shitty experiences and memories of loss. These experiences and responses are totally legitimate, but it was interesting that after a 30-year span of this disease, seemingly there still cannot be multiple subjectivities of an HIV-positive experience. That in order for them to be heard, we had to be silenced and toe the line of what positive people are supposed to be.

Alex: I agree, it was interesting that the poster, through claiming a very explicit sexual space and sexual identity of empowerment of a HIV-positive sexual life was seen by some as denying the personal lived experience of people who had passed away. As though acknowledging the lived realities of a broad range of positive people today somehow denied all the powerful work of those who have come before us. And then there was also the response from people who were like: “but what will the ‘general public’ think of us” or “what about the young people??”

Mikiki: That was particularly problematic…

Alex: And paternalistic.

Mikiki: That’s one of the things we’ve spoken with each other that was problematic is the: “what will the ‘general public’ say?” or “what will younger queer negative or young poz people think?” As in: if we give them this permission to have sexual agency what will happen? As though we can’t allow people to make their own informed decisions.

As a service provider, this is one of the most troubling conversations and interactions I’ve had with some people who work in HIV. Within this response (which is supposedly grounded in human rights) some service providers feel it is really necessary to withhold specific information until they find a way to “frame it properly”. Yes, I do get the idea of needing to evaluate how specific new pieces of information fit into the existing messaging. But the idea that we would in any way withhold information, especially where it might not just reinforce the work we’re doing is very problematic.*

With this project we’re not trying to undo the history of AIDS activism, we’re not trying to undo the history of prevention. We’re trying to reflect the fact that community knowledge and community practices have been shifting for decades. 

Alex: It’s fascinating for me to watch the lack of uptake of new science around Treatment as Prevention and how almost debilitated the HIV prevention response in Canada has been with this news. This response used to be innovative, visionary, and leading in many ways, all because people were reacting out of the desperate, dire urgency due to massive deaths in the community.

But today, the reaction to new science specifically regarding Treatment as Prevention – this paradigm shift in how HIV prevention is conceptualized - has seemingly fallen pretty flat when you look at the work of AIDS Service Organizations. Although, I know that people like you are working on it…

Mikiki: It’s a firewall… but yes, there is some work beginning to take place. Although it is slow.

Alex: It’s a firewall! It was interesting, because people reacting negatively on Facebook to the poster referenced the CATIE, Canadian AIDS Society (CAS) or Public Health Agency of Canada (PHAC) safer sex guidelines. Saying that since these guidelines didn’t include information on Treatment as Prevention, then it was not legitimate knowledge. Like: “only listen to what Public Health is telling us, and don’t listen to anything that hasn’t been triply approved by…”

Mikiki: Prime Minister Harper!

Alex: Hahaha! Treatment as Prevention was the biggest science news in the biggest science journal in the entire world last year. But as a community, we have not developed or even responded with relevant guidelines on how to incorporate the new reality that people living with HIV who are on treatment and have viral suppression do not always need to use condoms. This is very liberating news for our community, but seemingly nothing has yet happened with it.

Mikiki: We’ve been waiting for new CAS guidelines to update for how many years now? They are a widely recognized standard for how to do prevention work and how to talk about prevention and provide an accurate assessment on how to provide information of HIV risk and exposure. But the lack of reaction is not indicative of CAS specifically, it’s indicative of the Canadian HIV response in general, in that we don’t seem to have a proactive awareness of how to do basic KTE  (Knowledge Translation and Exchange). There are these big pieces of news that we actually need to apply to messaging for those of us doing front-line work. But it isn’t yet happening.

The response is stymied because people feel as though this new way of talking about HIV prevention (the potential to not use condoms) undermines some basic tenets of how we see positive people, and how Public Health practitioners want to control our sexualities.

Alex: True! The queer community innovated safer sex as a form of self-help and a way to imagine new ways of promoting mutual sexual community accountability. It was developed as a community response, a radical sexual response to a disease that was killing loved ones and friends.  Just like Harm Reduction, at first a covert project, which was seen as counter to Public Health practice, but has now ended up being co-opted in this Public Health voice. So today, it seems we can no longer radicalize safer sex messaging - which is how it used to be – because the Public Health voice is the only one that AIDS Service Organizations are now able to communicate in.

This is where the disconnect between the goals of Public Health and the rights of people living HIV are revealed. Public Health is not interested in our rights to health and information (so we can become empowered and informed sexual beings with HIV). Rather, Public Health is aimed at preventing us from transmitting HIV to the “general public”.

Mikiki: The “general public” that we don’t exist within! There is this idea of PHAs as something to be “controlled”, because we have a HIV-positive diagnosis there is this existing empirical evidence of our “misbehaviour”. So you know, we are marked, like the mark of the beast, or potentially a scarlet letter. So Public Health now has its target market (which is us) they have the authority to surveil, monitor, and intervene in our lives. Then Public Health also has the self-granted right to be able to punish as well. Public Health does not have a human rights focus in terms of their mandate and how they operate.

Alex: So lets talk about ‘responsibility’ and ‘irresponsibly’. In your poster, you used the term responsible in a way that I loved, because it was in a sexual context that we have been trained to understand as irresponsible, right? Within contexts of drug use and unprotected sex, things that “responsible” people are not supposed to do. So you intentionally blur the lines of ‘responsibility’ and ‘irresponsibility’ and also force us to question these commonly held ways of talking about risk.

Mikiki: For me, my poster was about identifying a new queer and poz cultural project that’s being undertaken, one that challenges the historical or more common cultural understanding of PHAs as inherently irresponsible. The idea of ‘responsible’ and ‘irresponsible’ as this dichotomy or binary could really use some queering up. It is important to recognize when we get into the lives of other people it’s useful for most of us “rational people” to realize there is a grey area where people actually live within.

Alex: But really, as the Gary Kinsman one of my fav scholars and queer AIDS activists wrote about in 1996, the concepts of responsibility and irresponsibility are used as a tactic of social control and governance for people living with HIV.  The “responsible” people living with HIV are the ones who are engaged with ASOs, who volunteer at condom pack stuffing events, who speak publically about their experience as examples of what not to be; who have the stories of sobriety on a panel where everyone claps at the end. It’s the same story: “I was a disorganized person living with HIV and through my engagement with HIV organizations I have now become an organized and responsible person”. Not in any way to disrespect people who live this story, as these stories can be powerful. But this is all part of making us better and more “productive citizens”.

Mikiki: The redemption songs, and only allowable redemption songs. There has to be some public disavowal of the behaviour that you participated in to put yourself at risk.  You don’t need to sing that song to me.

Alex: Right! We have this concept of what a “responsible” person with HIV is. We are supposed to be the person with HIV who sings the redemption song, who is employed in an ASO, is a peer researcher, who is the story of ‘Living and Serving’ - serving as a responsibility.

Mikiki: Or as shackles…

Alex: Exactly – ‘Living and Serving’ as another form of governance to construct the ‘good PHA’. The part for me that is scary about this is that the other side of the coin - the irresponsible PHA - is the one that is now criminalized. And a lot of the stigma around being ‘irresponsible’ (stigma coming from within the HIV community – I mean just look at some of the facebook comments about your poster) is the same form of stigma that is driving the criminalization of HIV non-disclosure. That is why pointing out this stuff is so important. Not just to be critical, but to talk about where we are going wrong and where our work as the HIV response can end up having unintended negative outcomes.

So before we end our chat, can we talk about re-infection?

Mikiki: Yes please! This has been brought up again and again by service providers regarding the problematic of HIV and bare-backing – the whole conversation of: “but what about re-infection?” I find it really problematic and angering. Re-infection is continually brought up as something poz people need to worry about. But it’s never couched as that there are almost 40 million poz people globally and a miniscule number of documented cases of re-infection. And among those, fewer still those with clinical complications because of that. Instead, we’re still going to talk about this whenever we talk about your sexuality. Which is kind of similar to telling people that every time you have sex to just be aware that you might get hit by lightening and shit yourself. So just be aware – you may never want to have sex again, it’s just a possibility!

Alex: Hahaha! Thanks so much Mikiki. I appreciate you taking the time to chat with me about this. Just so everyone reading this knows, we would like to hear from the readers of PositiveLite.com. So please comment below if you feel like participating with us. We are both humble people, and are open to being challenged and questioned.

Mikiki is an HIV-positive performance artist, activist, educator and sexual and reproductive health worker who emphasizes community-based practices and radical queer approaches across all of his work.

Alex McClelland has been living with HIV since 1998 and is a community organizer, activist, researcher and educator.  Alex is a Steering Committee member of AIDS ACTION NOW! and the Chair of the Canadian Treatment Action Council. 

* Mikiki wishes to note that this opinion is not reflective of any one specific agency, rather opinions coming from conversations had with multiple stakeholders present.

The year 2011, just ended, 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 appropriately treated HIVers 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 HIVers 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.

Sources:

Peabody, R.: PEP guidelines for the UK revised to take account of undetectable viral load. London: NAMaidsmap (December 2011): http://www.aidsmap.com/PEP-guidelines-for-the-UK-revised-to-take-account-of-undetectable-viral-load/page/2186929/ Accessed December 29, 2011

Wilton J.: Post-exposure prophylaxis fact sheet. Toronto: CATIE (2011) http://www.catie.ca/fact-sheets/prevention/post-exposure-prophylaxis-pep Accessed December 29, 2011

Wilton, J.: Enhancing the potential benefit of PEP. Toronto: CATIE (June 2011) http://www.catie.ca/en/catienews/2011-06-23/enhancing-potential-benefit-pep Accessed December 29, 2011

HALCO News Fall 2011. Toronto: HIV & AIDS Legal Clinic Ontario http://www.halco.org/wp-content/uploads/2011/11/HALCO_Newsletter_Fall_2011.pdf Accessed December 29, 2011

Salerno, R.: Ontario withdraws intervention in HIV criminalization cases. Toronto: Xtra! (December 2011) http://www.xtra.ca/public/National/Ontario_withdraws_intervention_in_HIV_criminalization_cases-11273.aspx Accessed December 29, 2011