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Should HIV non-disclosure remain a crime?

Is it time for Canada to end the criminal prosecution of people who fail to tell their sexual partners that they are infected with the human immunodeficiency virus?

In an article published this week in the Canadian Medical Association Journal, three prominent AIDS researchers say there is no evidence that criminal prosecutions for HIV non-disclosure protects individuals from infection. In fact, they argue, this overly legalistic approach to public health could be counterproductive.

At the beginning of the AIDS epidemic, doctors had little means of treating the disease and most patients faced certain death. But medical advances have transformed HIV treatment. Patients given highly active antiretroviral therapy, known as HAART, can now expect to live an almost normal lifespan. Furthermore, the drugs reduce HIV to undetectable levels in semen, vaginal fluids and blood.

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"HAART-treated patients become dramatically less likely to transmit the infection," according to the authors of the article, M-J Milloy, Thomas Kerr and Julio Montaner of St. Paul's Hospital in Vancouver. "Therefore, these people should not be found guilty for exposing sexual partners to HIV."

But to stop the spread of HIV, infected individuals must first be diagnosed so that they can begin treatment. The researchers warn that "high-profile prosecutions reported in the mainstream media may deter individuals from HIV testing." After all, many people assume they can't be charged if they don't know their own HIV status.

"The best thing you can do for the infected person and for public health is to offer them treatment," Dr. Montaner, who is also director of the B.C. Centre for Excellence in HIV/AIDS, said in an interview. "If you drive people away from testing and treatment, you are defeating your own purpose."

Dr. Montaner said Canada's legal system has appropriate measures to deal with HIV-infected individuals who are aware of their status and act with intent to harm others. Under existing circumstances, however, non-disclosers can be charged even if they practise safe sex and use a condom.

"Canada now ranks among the world leaders" in the rate of prosecutions for non-disclosure, the article says. According to Alison Symington, a senior policy analyst with the Canadian HIV/AIDS Legal Network in Toronto, about 140 people have been charged in Canada. In contrast, 345 individuals faced prosecution in the United States, which has a population 10 times the size of Canada's.

Ms. Symington noted that Canada does not have a specific law requiring people to disclose their HIV status to sexual partners. Instead, prosecutors have used existing Criminal Code provisions such as aggravated assault or aggravated sexual assault – a strategy supported by a 1998 ruling of the Supreme Court of Canada.

In February, 2012, the Supreme Court is scheduled to hear two cases involving HIV non-disclosure. It will be the first opportunity for the top judges to consider these prosecutions in light of new scientific evidence and a much improved outlook for those infected with HIV, Ms. Symington said.

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