Nondisclosure of HIV status should be decriminalized: report
By: Stephanie Law, Toronto Star
Sex work, possession of drugs for personal use and nondisclosure of HIV should all be decriminalized, according to a report released Monday by the Global Commission on HIV and the Law.
The commission, led by the United Nations Development Program, was launched in June 2010 to make recommendations on how laws can be changed and used to protect the human rights of people living with HIV, and to help fight the global HIV epidemic.
There were 14 commissioners from different countries involved in putting together the final report, “HIV and the Law: Risks, Rights and Health,” including former heads of state and leading legal, human rights and HIV experts.
“Too many countries waste vital resources by enforcing archaic laws that ignore science and perpetuate stigma,” said former president of Brazil and commission chair Fernando Henrique Cardoso in a press release. “Now, more than ever, we have a chance to free future generations from the threat of HIV. We cannot allow injustice and intolerance to undercut this progress, especially in these tough economic times.”
The report made over 80 recommendations that are based on extensive research and first-hand accounts from more than 1,000 people in 140 countries.
“There are very significant things that need to be done in Canada, as in other countries, that the commission has quite accurately identified as necessary,” said Richard Elliott, executive director at the Canadian HIV/AIDS Legal network, one of more than 20 experts and organizations that make up the commission’s Technical Advisory Group.
Elliott identified several key recommendations that apply to Canada: abandon antiquated prostitution law; abandon the failed war on drugs; abandon the criminal law used to prosecute people living with HIV; and fix Canada’s access to medicine regime to improve access to medicines.
“All of those things are found in this report, and all are areas where Canada needs to act,” he said. “And yet on a number of them, current government policy is seemingly diametrically opposed to what actually should happen.”
The political and legal landscape around the criminalization of HIV nondisclosure, as well as Canada’s intellectual property laws that affect its ability to export generic medicines to developing countries, is about to change — although it remains to be seen whether the change would be in line with the report’s findings.
On the intellectual property front, NDP MP Hélène Laverdière introduced bill C-398 in March, which seeks to streamline Canada’s Access to Medicines Regime, a law created in 2004 to make it easier for Canadian companies to export lower-cost generic drugs to less-developed countries, including some HIV medicines. This bill had previously passed a House of Commons vote last year as bill C-393, but died in the Senate when the last parliament dissolved in March 2011. The first vote for the reintroduced bill is expected in November.
Meanwhile, the Supreme Court of Canada heard in February the case of two people living with HIV who failed to disclose their HIV status to their sexual partners. Neither of the two charged persons had transmitted HIV to their partners. The court’s decision, which is expected in fall this year, will clarify an existing criminal law that says nondisclosure of HIV status that leads to a significant risk of bodily harm constitutes an offence of aggravated sexual assault.
If convicted, an HIV-positive person can face time in prison as well as be designated as a sexual offender, possibly for life. To date, more than 130 out of 48,000 people living with HIV in Canada have been charged for not disclosing their status, a majority of whom were later convicted. These charges included cases in which a condom was used, although the bulk of these have resulted in acquittals.
“It’s a witch-hunt against people living with HIV — Canada is actually one of the worst global offenders when it comes to misusing or overusing the criminal law to deal with HIV,” said Elliott. “It’s driven by misinformation, by fear, by stigma and prejudice about HIV and against people living with HIV — rather then the sober judgment of the evidence.”
Perhaps the most controversial recommendation made by the commission is to decriminalize the possession of drugs for personal use, said Elliott.
The report used Portugal, which had done exactly that in 2001, as an example of why this recommendation is valid. Since decriminalization took place, Portugal saw the number of people on methadone and buprenorphine treatment for drug dependency increase from 6,040 to 14,877, which is funded by money saved on police and prisons. It’s also had a drop in new HIV infections among people who use drugs.
The report, although applicable in many ways to Canada, in no way ensures that the government would act in alignment with its recommendation, said Elliott.
“It’s very useful road map for how the law can be helpful rather than harmful in helping people get access to treatment and preventing the further spread of HIV,” he said. “Certainly, those of us who work on legal and human rights issues will try to make sure the report has as much of an impact as possible, because the recommendations are very sensible — they’re the product of considerable international evidence and research.”