Canadian law around HIV has not caught up with the science, according to Dr. Pierre Plourde, Winnipeg’s medical officer of health and a community health sciences professor at the University of Manitoba. He kicked off a Nov. 21, 2018, seminar at Robson Hall.
Plourde said media coverage about disclosing HIV status to a sexual partner has died down since the 2012 Mabior case. Canadian law has historically treated people with HIV as criminals, he said, punishing people even when the possibility of transmitting the virus is negligible.
- In a 2013 Yellowknife case, an Indigenous man pled guilty to two counts of aggravated sexual assault for not telling two women he had sex with that he was infected with HIV. Plourde noted that this man was sentenced to three years in prison and had his name added to the national sex offender list for life, despite using a condom with at least one woman.
- In a 2013 Barrie, Ont., case, a woman with an undetectable viral load had intercourse with three men without revealing that she had HIV. She was convicted on one count, despite expert medical testimony that the risk of transmission to the partner was almost nil. She was sentenced to more than three years in prison.
- In Winnipeg in 2014, an Indigenous man was arrested for stealing. He was known to have HIV and was on treatment with a negligible viral load. He spit bloody saliva at police officers and was convicted of attempted aggravated assault and sentenced to 6.5 years in prison.
Plourde noted that modern medicine has “essentially turned a disease that kills into a manageable infection that does not kill you.” He said, “people with high blood pressure have a shorter life expectancy than people with HIV.” He said there is an increased risk for HIV transmission between men versus in a male-female relationship.
In the worst-case scenario, where no condom is used and no effective HIV treatment is occurring, the risk of spreading HIV to a partner (male/female) is 1 in 1,000. If a condom is used and the infected person is being treated and has a low viral load, the risk of transmission to a partner (male/female) becomes less than 1 in 100,000.
HIV non-disclosure cases have a high conviction rate despite the fact that many times the risk of infection to a partner was negligible. Mabior clarified that an individual with HIV must wear a condom and be on treatment with a low viral load in order to not have a responsibility to disclose HIV status to a partner. If you’re not taking all these precautions, then you must disclose the information to your partner.
Plourde said the best thing to do if you’re infected is to take your medicine and maintain a low/undetectable viral load and use condoms. If you’re not HIV positive, get tested and stay safe.
Do you think there is a place for the criminal justice system or should HIV be exclusively be a public health issue?
I’m hard pressed to find a reason why it should ever be criminalized at all. Why are we concerned only with HIV and not people who have HPV, etc.?
Has the proportion of people with HIV in treatment increased?
That’s what we’re working on. We have the 90-90-90 approach. It’s that 90% of people who are at risk or infected get tested, 90% start treatment, and, of those, 90% have a supressed viral load.
Paula Migliardi, a healthy sexuality specialist with the Winnipeg Regional Health Authority, discussed her research on working with refugees around the law and HIV. She said Canada is known as an HIV criminalization “hot spot” but prosecutions have increased globally over recent years.
“Media have played a significant role,” she said, by picking up stories around the criminalization. She asked how to change that narrative, which has important implications for the day-to-day life of the people being portrayed. Her research has revealed arbitrary and differential enforcement, heightened stigmatization of people living with HIV, potential discouragement of HIV testing and the lack of deterrence.
Migliardi’s research has focused on African immigrants. “HIV disclosure is highly problematic,” she said. Women are being blamed for passing the virus to others as well as for their own HIV diagnosis. They believe the law is not on their side and participants in Migliardi’s research “became heated on this particular topic.” Women feel their disclosure may become a weapon against them through social media, which has been the case for many.
Stigmatization is a key issue and a barrier to HIV prevention and sexual health promotion. Migliardi said it is important that there are clear supports for individuals with HIV and that the HIV Justice Network is a great resource for more information across the globe.
Laverne Gervais co-ordinates the Sisters of Fire project at Ka Ni Kanichihk, which deals with the reality for women in Winnipeg who have HIV. She is a sexual health educator as well as an Indigenous educator.
“As Indigenous women, we are overrepresented in so many models,” she said. In 2016, female infections were much more concentrated in African/Black/Caribbean (51%) and Indigenous (34%) women.
Gervais shared a story of another Manitoba woman who had had intercourse with a number of men without using condoms. Despite having a low viral load, she was facing up to 25 years in prison. Despite this difficult part of her life, the woman completely changed her life.
Gervais partnered with the National HIV Network and attended the U.S. National Training Academy in Alabama. She learned how to mobilize and change the system and now provides that support to people with HIV in Manitoba.
What is your perspective on the Canadian Blood Services ban of blood donations from men who have sex with men?
Science doesn’t support it. Even though it seems unjust, they feel their duty to society is that they will not bring a blood product near you unless it has zero chance of being infected.
Should we be advocating for complete decriminalization? Or reserve prosecution for cases where people are vindictive?
I go more towards Indigenous laws. Part of me thinks there isn’t a place in criminal law, but we still have to be accountable to each other. We need to get back to our beliefs and values about how we treat people.
Do you have a strategy for de-stigmatizing HIV infection?
Do it by supporting each other and supporting the women to find their voice. Working with women to make them feel safe. Build a community that understand that love is far more important and is what is needed.
Listen to podcasts from seminars in this series.