The Canadian HIV/AIDS Legal Network announced this week that a coalition has been formed comprising community members of various backgrounds united to fight unjust criminalization of HIV non-disclosure. The issue has long been a thorn in the side of HIV advocates frustrated at the number of people living with HIV who are being prosecuted and jailed, sometimes where there was no chance of transmission taking place, for not disclosing their HIV status to their sexual partners. The Canadian justice system is known for being one of the most aggressive in the world for prosecutions of this nature.
The coalition was formed after a contingent of Canadians, including legal experts and people living with HIV traveled to Alabama this past May to take part in the second HIV is Not a Crime training academy. PositiveLite.com reported on that event here.
The work of the group is supported by the Legal Network and the coalition steering committee includes names familiar to many within the HIV movement like Chad Clarke, Grant Cobb., Cécile Kazatchkine, Liz Lacharpagne, Alex McClelland and Valerie Nicholson. Says their news release “While the Coalition is a nascent initiative, it relies on years of experience in advocacy and expertise on HIV criminalization in Canada.”
At a recent two-day meeting “members of the Coalition were guided by the powerful testimonies of two individuals who have been criminally charged with HIV non-disclosure. The Coalition discussed opportunities for greater involvement and support of people living with HIV, including people with lived experience in responding to unjust prosecutions, as well as potential avenues for advocacy at the federal level.”
The coalition has come into being at a time when the science of transmission, which has invariably been highlighted in many criminal cases of this nature, is in the news. In particular, the protection provided by a fully suppressed viral load has been highlighted by a series of studies culminating in PARTNER, and by the Prevention Access Campaign and its Undetectable = Uninfectious messaging that has been duplicated by HIV agencies around the world.
Here is an example from the U.K.'s largest AIDS Service Organization:
Prior to PARTNER a key element of the discussion had been, and still is, a Consensus Statement put together by six Canadian medical experts – you can read it here - which says “Overall, the evidence suggests that the possibility of sexual transmission of HIV from an HIV-positive individual to an HIV-negative individual via unprotected vaginal intercourse approaches zero when the HIV-positive individual is taking antiretroviral therapy and has an undetectable viral load.” We understand the Legal Network is asking experts to review the science at a time when some experts are now using “zero risk” language.
The issue is significant in that the most recent Supreme Court ruling suggested that in order to avoid the risk of prosecution for non-disclosure both a condom and viral suppression would need to be in place. (Some have characterized this as the “belt and suspenders “ defense. But will stronger scientific evidence, such as that from PARTNER, be effective in bringing about less rigorous conditions? We don’t know, but from this distance it looks like a good bet.
PositiveLite.com asked two people in the centre of this affair what they thought the impact of a growing realization that people living with HIV cannot transmit the virus might be. Their answers give us hope.
On the evidence itself, Cecile Kazatchkine a member of the coalition and a lawyer with the Legal Network. told us “the goal of the coalition is to progressively reform discriminatory and unjust criminal and public health laws and practices that criminalize and regulate people living with HIV in relation to HIV exposure, transmission and non-disclosure in Canada. Unjust prosecutions certainly include prosecutions where the risk of transmission is negligible if not non-existent (which, based on medical evidence, is the case when people have an undetectable viral load as the result of antiretroviral therapy) but it could also include much more.”
Richard Elliott (left), the Legal Network’s approachable executive director, pointed out that the Network incorporates information about PARTNER and draws it to the attention of counsel when it reaches out to them directly to support them in defending clients. Said Richard “I think it's fair to say that there is unanimity among Canadian organizations working against unjust criminalization of HIV that criminalization is unjust in the circumstance where someone has an undetectable viral load.”
He went on “I can't really speak on behalf of HIV Justice Worldwide, which is its own entity. However, HIV Justice Worldwide provided input into the development of the U=U statement, and so did the Legal Network via HIV Wolrdide. There are plenty of HIV organizations in Canada, including the Legal Network but also others, that have made it very clear, including in plenty of submissions before the Supreme Court of Canada and various provincial courts of appeal, that we oppose criminalizing HIV non-disclosure in cases where a person has an undetectable viral load, because in our view it does not meet the "significant risk" or "realistic possibility" threshold for criminal conviction.”
In the meantime, the entire community of those who work with people living with HIV, as well as those people themselves, continue to ponder what it means to be undetectable, not only from a legal perspective but from a sexual health and personal empowerment perspective also.
The coalition thus appears on the scene at a fortuitous time. We wish them well.