[Viva] Fwd: FYI: Toronto Star (July 26): A tale of two epidemics: HIV and unjust criminalization

[Denise Becker]

This article was in the Toronto Star today - from the Canadian HIV/AIDS
Legal Network Executive Director, Richard Elliott.
Denise

---------- Forwarded message ----------
From: Terry Gould <tgould at aidslaw.ca>
Date: Thu, Jul 26, 2012 at 6:51 AM
Subject: FYI: Toronto Star (July 26): A tale of two epidemics: HIV and
unjust criminalization
To: Info <info at aidslaw.ca>


**

*(Disponible en anglais seulement)*
*
  A tale of two epidemics: HIV and unjust criminalization

Richard Elliott and Cecile Kazatchkine
*

This week, some 30,000 people from around the world are gathering in
Washington at the *International AIDS Conference* <http://www.aids2012.org/>.
One concern already attracting attention is the global phenomenon of
lawmakers resorting to criminal prosecutions in cases where people are
alleged to have not disclosed their HIV-positive status to a sexual
partner, regardless of the risk of transmission.

The latest alarm was sounded by the UN-supported *Global Commission on HIV
and the Law* <http://www.undp.org.mk/content/Publications/FinalRepoAIDS.pdf>,
which describes the overly broad use of criminal law in such cases as
"fundamentally unjust, morally harmful, and virtually impossible to enforce
with any semblance of fairness."

Indeed, the epidemic of over-criminalization is a growing menace to public
health and human rights here in Canada — threatening not only those members
of our communities who live with HIV, but ultimately putting all Canadians
at greater risk and undermining our collective efforts to end AIDS. We
already hold the dubious distinction of being a world leader in criminally
prosecuting people living with HIV, often based on he-said/she-said
accusations of not disclosing their status to a sexual partner. Now
prosecutors are trying to make the situation even worse.

What’s the problem, some might ask? Shouldn’t the law always require you to
disclose if you have HIV?

Things aren’t so clear cut. As the Supreme Court of Canada recognized years
ago, the criminal law should be used only within limits — including a
consideration of the risk of harm that a person’s conduct might cause. It
ruled that there has to be "significant risk" of a "serious bodily harm"
(e.g., HIV infection) in order to convict someone for sexual assault for
not disclosing he or she had HIV. Unfortunately, the court failed to
clarify what this meant, which has resulted in considerable unfairness in
the application of the law.

But now some prosecutors are moving aggressively to get rid of even this
restraint on criminalizing people living with HIV. Two landmark cases were
heard this year by the Supreme Court of Canada, with the decisions pending.
Prosecutors argued that the court should adopt a dangerous and simplistic
position: all people with HIV must disclose in every circumstance,
regardless of how minute the risk of transmission, and if they don’t they
should be convicted of aggravated sexual assault and thereby exposed to
possibly years of imprisonment and designation as a sex offender — even if
there was no harmful intent and even if they took steps to protect
themselves and their partner.

To his credit, Ontario Attorney General John Gerretsen ultimately decided
not to pursue this kind of argument before the court, leaving such
extremism to government lawyers from Manitoba, Quebec and Alberta. But now,
as we await the Supreme Court’s decision, he seems intent on doing exactly
the opposite.

Ontario Crown prosecutors are currently pursuing convictions in cases where
no such risk exists, with wilful disregard for both the law settled by the
Supreme Court of Canada and the constantly evolving science that must
inform that law. This includes the evidence we have about the relative
difficulty of transmitting HIV, how condoms are extremely effective at
blocking the virus, or how successful treatment with antiretroviral drugs
dramatically reduces a person’s already low risk of transmitting HIV.

Evidence is also emerging (from Canadian researchers) that overzealous,
high-profile prosecutions can deter some people from seeking testing.
Furthermore, the fear that what is revealed to doctors and counsellors may
end up being used as evidence in a criminal prosecution is real, given that
this is now commonplace in criminal prosecutions. This creates a powerful
chill on openly discussing sexual activity, particularly when people fear
that an ex-partner may choose to abuse the criminal law for vindictive
reasons.

Meanwhile, people not living with HIV are lulled into a false sense of
security, believing that the criminal law eliminates their need for
personal responsibility. If our goal is truly to halt this epidemic, we
must raise the conversation above this simplistic fear-mongering.

Gerretsen needs to stop the witch-hunt against people living with HIV that
is underway. He must instruct Crown prosecutors to respect the current
legal standard established by the Supreme Court. The misuse of criminal
prosecutions against people living with HIV for nondisclosure is harmful to
our communities. It is harmful to people living with HIV who end up further
stigmatized, and whose lives can be shattered by a single false accusation.
It is also harmful to those of us not living with HIV; education and
practising safer sex will do far more to prevent HIV than misguided
over-criminalization.

Think twice before prosecuting.
*

Richard Elliott
* and *Cecile Kazatchkine* are lawyers with the Canadian HIV/AIDS Legal
Network (*www.aidslaw.ca* <http://www.aidslaw.ca/>*).*

http://www.thestar.com/opinion/editorialopinion/article/1231813--a-tale-of-two-epidemics-hiv-and-unjust-criminalization
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