Canada is second only to the United States when it comes to prosecuting people who infect others with HIV, a surprising new study reveals.
More than 600 people worldwide have been convicted of a crime after infecting a sexual partner with the AIDS virus, or because they potentially exposed others to the virus through spitting, biting, blood transfusion, oral sex or intercourse, according to data compiled by the Global Network of People Living with HIV.
Moono Nyambe, a program officer with the group, known as GNP+, said there have been criminal convictions related to the transmission of HIV in at least 50 countries since 2005.
Some 45 countries now have laws that specifically criminalize transmission of HIV, she said, while other countries use existing laws.
Prosecutions are becoming increasingly frequent and there is a marked escalation in the severity of charges and the punishment meted out, Ms. Nyambe said.
Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said Canada is a case in point.
There have been 63 criminal convictions related to HIV-AIDS transmission in Canada. The charges include common nuisance, sexual assault and murder.
Mr. Elliott could point to no obvious reason why Canada has a high number of prosecutions, except that it is a country with a strong tradition of the rule of law. "When you have a political system with a lot of state regulation, that can be both positive and negative," he said.
The first case of HIV transmission to be prosecuted in Canada occurred in 1998, when Henry Cuerrier of Squamish, B.C., was charged with aggravated assault for not telling two sexual partners he was infected with HIV. He was acquitted because neither woman became infected.
Last year, Johnson Aziga of Hamilton, Ont., was convicted of two counts of first-degree murder after he infected two sexual partners with HIV. Both women died of AIDS-related cancers.
The issue of criminal prosecution of those who transmit HIV-AIDS is complex, Mr. Elliott said. "This is not a black-and-white issue. It's all shades of grey."
The big problem in Canada is that prosecutions are arbitrary, and hence unfair, Mr. Elliott contends. For example, he said, charges have been laid against HIV-positive prisoners for spitting on correctional officers, as well as in cases of unprotected sex where no infection occurs, actions that in the ordinary course of events often have no legal consequences.
The Canadian HIV/AIDS Legal Network is working with provincial justice officials to develop guidelines for prosecution.
According to the GNP+ report, the United States has the largest number of convictions related to exposure to HIV, at 205. The country is notable for prosecuting cases in which transmission of the virus is essentially nil, such as when an HIV-infected person spits on someone.
Ms. Nyambe said it is ironic that the vast majority of prosecutions for HIV transmission are in North America and Europe, which have a relatively low rate of infection. But she said there is a growing trend for countries in Africa and Asia - where the epidemic is widespread - to criminalize transmission of the virus.
Susan Timberlake, senior law and human-rights adviser with UNAIDS, said the organization has made it a priority to ensure the removal of "punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV."
Part of that battle, she said, is ensuring that prosecutions for HIV transmission are appropriate. According to UNAIDS, criminal charges are justified only when a person intentionally seeks to infect another with HIV-AIDS.
Ms. Timberlake noted that there are two divergent philosophies on criminal prosecution. One holds that tough laws will discourage irresponsible acts; the other that the fear of prosecution will lead those who are HIV-positive to avoid being tested and to hide their status.
Mr. Elliott said the reality is that there is no good evidence to back either view.
"We're operating in an evidentiary vacuum," he said. "But regardless of positions, there is a consensus that we need to bring some rationality to the use of criminal law."
The main tenets of the Vienna Declaration
We, the undersigned, call on governments and international organizations, including the United Nations, to:
* Undertake a transparent review of the effectiveness of current drug policies.
* Implement and evaluate a science-based public health approach to address the individual and community harms stemming from illicit drug use.
* Decriminalize drug users, scale up evidence-based drug dependence treatment options and abolish ineffective compulsory drug treatment centres that violate the Universal Declaration of Human Rights.26
* Unequivocally endorse and scale up funding for the implementation of the comprehensive package of HIV interventions spelled out in the WHO, UNODC and UNAIDS Target Setting Guide.27
* Meaningfully involve members of the affected community in developing, monitoring and implementing services and policies that affect their lives.
André Picard