By Tim Kiladze

Photo by guspim.
Forget stigma as we know it: a new “criminal” label now applies to some members of the HIV/AIDS community. According to the Supreme Court of Canada, HIV-positive individuals must inform their partners of their diagnosis before having sex that poses a “significant risk” of HIV transmission (like anal and vaginal sex without a condom); as seen in recent court cases in Hamilton and Montreal, withholding this info can result in criminal prosecution. Beyond this basic framework, however, the law gets murky: if someone thinks they might have HIV but has not been positively diagnosed, for example, he or she may have a legal obligation to disclose this suspicion before having unprotected sex.

Facing a growing number of criminalization cases in and around Toronto, a coalition of HIV/AIDS-related groups organized a forum this past Thursday at Metro Hall. The stories were heartfelt: the first speaker, community member Derek Yee, described a friend who had sex for the first time in his mid-20s and accidentally slept with someone who purposely infected him. Another panellist, Murray Jose of the Toronto PWA Foundation, described the stigma she faces—even at the dentist’s office. The overarching feeling was one of marginalization and infringement on personal freedoms and liberties. Yee, implying that he felt like a second-class citizen, described his frustration when he asked: “Should I be branded or marked forever?”
As the discussion progressed, the legal and personal complexity of criminalizing HIV became palpable. How does someone who is HIV-positive prove they disclosed their status to a sex partner? If verbal disclosure can’t be verified, will a written statement suffice? And if so, what happens if that letter (e-mail, for example) unwillingly gets sent to others? Some community members asked how HIV-positive people are expected to fall in love when they have to first cross the disclosure obstacle.

Photo by Sweet One.
Dr. Rita Shahin, an Associate Medical Officer with Toronto Public Health, was much more clinical in her approach. Although she visibly showed empathy for the community members’ concerns, Shahin did not waver on her organization’s belief that using a condom does not count as full disclosure; she said that from a public health standpoint, the correct thing to do is to disclose your status. Knowing this view was contentious, Shahin explained that this decision is a compromise because “the goal [of Toronto Public Health] is to balance the interests of infected people, their partner, and the community.” This stance was also taken by Margaret Wente (who was at the forum) in her opinion column in Saturday’s Globe and Mail.
Because of its unpopular view, some audience members tried to blame the rise in criminal HIV-related cases on Toronto Public Health, claiming the organization doesn’t do enough to educate the public on HIV/AIDS. These arguments didn’t hold much weight: most attendees agreed that limited public education is a result of funding levels determined by politicians. The majority of the audience also shared the belief that more HIV/AIDS education will help to limit the virus’ spread and that education will have a greater effect than criminalization. As poignantly noted by Jose, “if in Canada, every two hours someone is getting infected, it means that criminalization is not working.”
There aren’t many widely accepted empirical studies that prove criminalizing HIV is or is not effective; however, UNAIDS has released a thorough report [PDF] that outlines some alternatives, like confidential HIV testing and disseminating HIV information to help people avoid exposure. It will certainly take time to determine which measures are the most effective, but that doesn’t mean we should forget about the issue while we analyze the results. In the midst of an economic downturn, it’s too easy to overlook the twelve thousand people living with HIV here in Toronto (as estimated by Toronto Public Health). With World AIDS Day now behind us, the real work starts: let’s not wait another year to focus on our city’s AIDS victims and on others infected globally.