Nondisclosure of HIV status should be decriminalized: report
July 09, 2012 - 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."
"Reproduced with permission - Torstar Syndication Services"
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