HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario, Eric Mykhalovskiy, Ph.D. et al., Ontario HIV Treatment Network (2010)

This report was written in response to the growing concerns over the use of criminal law to address the risk of sexual transmission of HIV or AIDS in Ontario, Canada. Working from interviews and surveys with many different stakeholders, the report analyzes evidence relating to the impact of criminalizing HIV non-disclosure and proposes policy options designed to address the problems that such criminal laws create.

In Canada, the Supreme Court's decision in R v. Cuerrier established that people living with HIV or AIDS (PHA) have a legal obligation to disclose their status prior to engaging in sex acts that pose a "significant risk" of transmission. Which acts pose a "significant risk" of transmission were not identified in the opinion. Although research has assessed which acts carry more risk than others, HIV transmission is rare when a person with HIV has a low viral load, and can now also be significantly reduced with the reliable use of antiretroviral medications. Many policy makers and courts still rely on outdated medical knowledge and determine that certain behaviors carry a more significant transmission risk than they actually do.

The report discusses the evidence relating to HIV non-disclosure laws in four sections: the first looks at data relating the trends in prosecution of criminal cases of HIV non-disclosure, the second section outlines some of the key problems with the ill-defined nature of "acts with a significant risk" of transmission, the third section analyzes current scientific research relating to the risk of HIV transmission and on HIV as a manageable disease with proper treatment. The fourth section examines the social ramifications of HIV criminalization laws, discussing how they undermine HIV prevention efforts by discouraging PHA from seeking support.

Finally, the report poses some potential solutions including the development of a suitable Crown policy and practice memorandum which is a set of guidelines for policy and procedure when prosecuting a case. Adding a section that contains information about how to fairly prosecute an individual for HIV or STD non-disclosure might help clarify the meaning of "significant risk" and help safeguard against prosecutions based on bias or poor science, but would not seem to address the community support issues discussed in the fourth section. Indeed, the creation of HIV-specific guidelines can reinforce the belief that HIV and related transmission risks merit unique treatment under the criminal law, a belief that can reinforce stigma.