By Alex Garner Editor-at-Large

Don’t be fooled by the recent ruling by the Canadian Supreme Court regarding HIV criminalization. It was not a win for social justice. It was a step backwards. This ruling will do little to prevent future prosecutions and perpetuates the belief that HIV-positive people are criminals.

The court ruled that if a condom was used and the HIV-positive individual had a suppressed viral load they could not be prosecuted. This was their attempt to clarify guidelines for prosecution towards a, “realistic possibility of transmission of HIV.”

They claimed to have taken science into account but it’s clear that, scientifically speaking, a suppressed viral load and condom use are practically redundant. Our very own Centers For Disease Control just put out a list of risk of transmission and a suppressed viral load was the lowest risk. Lower than using a condom.

I’m also left to wonder about when that viral load test is taken. After arrest? That could be months after the incident and couldn’t tell you what the person’s viral load was at the time of the event. If it’s based on medical records then it would turn into the HIV-positive person’s knowledge of their viral load based on their last test, which could have been months ago. You can see how messy this is.

One thing is clear, the courts are essentially saying, “ A condom may prevent infection but it won’t prevent prosecution.”

This was the reaction from Richard Elliott, the Executive Director of the Canadian HIV/AIDS Legal Network:

We are dismayed and shocked by the Supreme Court’s decision. It is a step backward for public health and for human rights. The Court purports to maintain the current standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But given today’s judgment, this is an illusory limit to the criminal law. The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000. Such an approach gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV. In practice, the Court’s ruling means that people risk being criminally prosecuted even in cases where they took precautions such as using condoms – which are 100% effective when used properly. This decision will not only lead to continued injustice but undermines public health efforts. It creates another disincentive to getting an HIV test and creates a further chill on what people can disclose to health professionals and support workers. People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads.

The courts are imperfect. When they get it right our lives can radically change for the better. When they get it wrong our grasp on justice weakens. This ruling will do nothing to prevent new infections and only strengthens the belief that HIV-positive people are disease-spreading criminals. 

The stigma created by these laws is real and some boundaries drawn on a map do not restrict it. Even if laws don't exist in your state, it doesn't prevent people from using them to threaten someone. We aren’t just fighting unjust laws we are fighting a culture that says it’s okay to criminalize HIV-positive people. Once again, we have to lead this fight. It’s up to us to step forward and say, “I am HIV-positive and I am not a criminal.” Maybe this travesty will compel more people to do just that. 

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