BC-CfE Study Finds a Majority of HIV-Positive Women Who Use Injection Drugs Face Legal Obligation to Disclose HIV Status to Sexual Partners

published on July 17, 2015

Vancouver, BC [July 17, 2015] A new British Columbia Centre for Excellence in HIV/AIDS (BC-CfE) study finds 44 per cent of participants within a research cohort of people who use injection drugs living with HIV in Vancouver would be legally obligated to disclose their HIV status to their sexual partners. Within the study, 65 per cent of male participants compared with only 45 percent of female participants satisfied the Supreme Court of Canada’s legal test for HIV non-disclosure, based on the October 2012 ruling in R v. Mabior.

Under current case law, people living with HIV must disclose their HIV status to a partner before sexual activity unless both a condom is used and a low HIV viral load is present.

The vast majority (98 per cent) of cohort participants in this study either self-reported always using a condom or achieved a low HIV viral load (<1500 copies/ml), and as such took steps to reduce the risk of HIV transmission to sexual partners. A person living with HIV who is appropriately treated and sustained on effective antiretroviral therapy will have an undetectable viral load, meaning the chance they will spread the virus is extremely low. In British Columbia, individuals living with HIV who are medically eligible are provided with early and universal access to antiretroviral therapy, under the made-in-BC Treatment as Prevention strategy.

“The law as it currently stands places an additional veil of threat over an already vulnerable and criminalized population within one of Canada’s most impoverished communities,” said BC-CfE Director Dr. Julio Montaner. “Current non-HIV non-disclosure laws in Canada are not aligned with the state of the scientific evidence, and as a result create further stigma and fear around HIV.”

"The criminalization of HIV non-disclosure can affect people living with HIV in Canada in many ways," said Valerie Nicholson, an Aboriginal woman living with HIV and the Chair of the Board of Directors at Positive Living BC. “People may face criminal charges for not disclosing, which can lead to lengthy and damaging criminal prosecutions – based on no scientific evidence. In the wider community, the law increases stigma and discrimination, does not account for power or control imbalances in relationships, compromises our ability to lead healthy sex lives and may introduce questions about the limits of confidentiality in the health care setting."

The study, “Gender differences in meeting legal obligations to disclose HIV status within a cohort of HIV-positive illicit drug users in Vancouver”, was released at the 2015 International AIDS Society Conference. The findings are from the AIDS Care Cohort to evaluate Exposure to Survival Services (ACCESS), an ongoing cohort of more than 1,000 people living with HIV/AIDS, funded by the United States National Institutes of Health. The long-running study investigates the barriers faced by HIV-positive people who use drugs to getting and staying on HIV/AIDS treatment, such as homelessness, active drug use and incarceration.

BACKGROUND
Criminalization of HIV non-disclosure: Canada has some of the world’s highest rates of prosecutions of people living with HIV
As of January 2014, more than 150 people have been criminally charged in Canada for not disclosing their HIV status since 1989. Canada has one of the strictest legal approaches to the prosecution of people living with HIV worldwide, and demonstrates the highest number of convictions of people living with HIV after the United States. Current case law requires individuals to disclose their HIV status to sexual partners unless they have a low level of HIV in their blood and use a condom. Public health advocates argue that either condom use or a low HIV viral load should be sufficient to remove the legal obligation to disclose. Scientific evidence indicates that the possibility of HIV transmission during condomless sex with an undetectable viral load approaches zero. In 2014, 70 Canadian scientists – including BC-CfE Director Dr. Julio Montaner — signed a joint statement affirming the negligible possibility of sexual HIV transmission by a person living with HIV who is receiving antiretroviral therapy or who uses a condom. The statement underlined their concerns that HIV non-disclosure prosecutions do not protect public health, but can deter people living with HIV and AIDS from accessing and adhering to treatment and care.

Women and HIV criminalization
Estimates from January 2014 suggest that 17 women have been charged for HIV non-disclosure in Canada. The charge most commonly associated with HIV non-disclosure is aggravated sexual assault. This charge carries maximum penalty of life imprisonment and sexual offender registration, which can be detrimental to future health, employment and housing access. Critics of the current case law argue it fails to take into account gendered challenges to HIV disclosure and can lead women living with HIV to stay in abusive relationships out of fear of prosecution. The influence of criminalization of HIV non-disclosure on the health and rights of women living with HIV in Canada is being further investigated within the BC-CfE affiliated Canadian HIV Women's Sexual & Reproductive Health Cohort Study (CHIWOS), a national community-based research study following over 1,400 women living with HIV.

Treatment as Prevention
Treatment as Prevention (TasP), pioneered by Director of the BC-CfE Dr. Julio Montaner, consists of widespread HIV testing and the immediate and full offer of highly active antiretroviral therapy (HAART) to those who test positive and those who are medically eligible. TasP has been proven to greatly improve a patient’s quality of life and extend longevity by decades, while significantly reducing the likelihood of transmission. British Columbia is the only province to implement TasP and the only one to see a consistent decline in new HIV cases.

About the British Columbia Centre for Excellence in HIV/AIDS 
The BC Centre for Excellence in HIV/AIDS (BC-CfE) is Canada’s largest HIV/AIDS research, treatment and education facility and is internationally recognized as an innovative world leader in combating HIV/AIDS and related diseases. BC-CfE is based at St. Paul’s Hospital, Providence Health Care, a teaching hospital of the University of British Columbia. The BC-CfE works in close collaboration with key provincial stakeholders, including health authorities, health care providers, academics from other institutions, and the community to decrease the health burden of HIV and AIDS. The BC-CfE’s mission is to improve the health of British Columbians living with HIV through developing, monitoring and disseminating comprehensive research and treatment programs for HIV and related illnesses.

For additional information or to request interviews, please contact:
Caroline Dobuzinskis
BC-CfE
Phone: 604-682-2344 ext. 66536
Cell: 604-366-6540
Email: cdobuzin@cfenet.ubc.ca

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BC-CfE Study Finds a Majority of HIV-Positive Women Who Use Injection Drugs Face Legal Obligation to Disclose HIV Status to Sexual Partners

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