Dr. Kate Salters, BC-CfE Research Scientist, gives testimony to the House of Commons Standing Committee on Justice and Human Rights regarding HIV non-disclosure criminalization

published on May 14, 2019 in ParlVU

Standing Committee on Justice and Human Rights
Statement- Kate Salters, PhD, MPH

Good morning everyone. My name is Kate Salters and I am a PhD-trained Infectious Disease Epidemiologist working as a Research Scientist at the BC Centre for Excellence in HIV/AIDS (the BC-CfE) and a faculty member at Simon Fraser University within the Faculty of Health Sciences. Thank you for inviting me to speak with you today.

I would like to first acknowledge the land and territories on which we gather today. It is critical to reflect on the role of colonialism in the disproportionate burden of HIV among Indigenous populations nationwide.

During my brief time with you, I hope I am able to impress upon you the overwhelming evidence that challenges the criminalization of nondisclosure of one’s HIV status. I will demonstrate how the law poses direct and significant barriers to our efforts to prevent HIV and provide clinical care to those living with HIV. I am here on behalf of many other scientists, community members, and clinicians who witness the impact these laws have on our communities and how they threaten our public health efforts.

Quite frankly, the current law does not reflect reality, nor science. There is overwhelming scientific evidence demonstrating that, when a person living with HIV is on treatment (antiretroviral therapy), not only does their health and longevity improve, but HIV replication is halted. Antiretroviral therapy drives HIV to undetectable levels in biological fluids, including blood, semen and cervico-vaginal fluids. Having an undetectable viral load is the goal of antiretroviral therapy and means that HIV cannot be transmitted to a sexual partner.

This double benefit of antiretroviral therapy is known as Treatment as Prevention, or TasP, a made-in-Canada strategy formally endorsed by the World Health Organization, the UN, and the government of Canada since 2015. The BC-CfE originally postulated the TasP strategy in 2006 and its implementation in BC has led to the largest decline in new HIV cases in the country.

This phenomenon is not new. In 2014, 70 Canadian scientists signed a joint statement affirming the negligible possibility of sexual HIV transmission by a person living with HIV who is receiving antiretroviral therapy or uses a condom. This was five years ago. There have been at least 12 HIV non-disclosure cases since then, as reported by the Canadian HIV/AIDS Legal Network.

Since then, major international studies have definitively confirmed that consistent and sustained antiretroviral therapy stops onward HIV transmission. Most recently, the PARTNER study assessed HIV transmission risk among serodisordant gay couples, meaning one partner was living with HIV on treatment and the other was HIV-negative. Scientists measured over 77,000 episodes of sex where a condom was not used. How many transmission events were observed between study participants? There were none. Zero cases.

To add, previous PARTNER study findings showed no cases of HIV transmission between serodiscordant gay and straight couples in over 58,000 acts of condomless sex.

In other words, Undetectable means HIV is Untransmittable, or U=U. The Honourable Ginette Petitpas Taylor acknowledged the clear science behind the U=U message to end stigma and in 2018 became the first Minister of Health to officially endorse the campaign, demonstrating Canadian leadership on science-informed health policy.

In stark contrast to these efforts, the current criminal code perpetuates HIVrelated stigma, leading to significant delays or total lack of testing. As a result, individuals living with HIV will not initiate treatment in a timely manner that eliminates the risk on onward transmission. The virus rapidly replicates during acute (or early) infection. Eliminating delays in diagnosis and connecting people to care are the critical steps needed to eliminate the HIV epidemic in Canada.

Women are especially at risk of delays in accessing care. This is linked to many factors, including: HIV-related stigma, poverty, and poor understanding of the needs of women living with HIV.

A study conducted by our organization found that, of nearly 1,000 participants, significantly more men than women living with HIV (65% vs. 45%) report fulfilling the current legal requirement to have both a low viral load and condom use with a new sexual partner. This was despite the fact that nearly 100% of the participants reported doing one or the other. That means that despite taking the established steps to guarantee the elimination of transmission risk, more than half of the female study participants could be at risk of being charged with aggravated sexual assault.

The current law fails to address how particularly women (cis and trans women) may not be able to safely negotiate condom use with their sexual partners. These real, gendered risks are not reflected in the current interpretation of the law. Research conducted by my colleagues and I found that 81% of women living with HIV in BC have reported experiences of violence in their lives. Similar findings have been published in a national cohort of over 1,400 women living with HIV. More recently, we have shown that 60% of women living with HIV have experienced sexual or physical intimate partner violence, suggesting huge inequities in sexual relationships. Women have reported being threatened, assaulted, abandoned, and “outted” as being HIV-positive when disclosing their HIVstatus to sexual partners. Women living with HIV may instead choose to take actions within their control in order to eliminate the risk of HIV transmission by maintaining an undetectable viral load.

It is naïve and inappropriate to assume that women living with HIV should be legally required to ensure their male sexual partners use condoms. Under current interpretations of the law, a woman with undetectable HIV who is unable to convince her male sexual partner to use a condom may be charged with aggravated sexual assault. She would then be classified as a violent sexual offender, despite having no intention of transmission and there being zero risk of HIV.

Nevertheless, our research shows women with HIV are doing everything in their power, through adherence to antiretroviral therapy and sustained virologic suppression, to eliminate the risk of onward HIV transmission. Relying on an undetectable viral load is an empowering and effective way for women living with HIV to reduce risks to themselves and others. Aggravated sexual assault is among the most serious offences within the Criminal Code and should be applied when a perpetrator “wounds, maims, disfigures or endangers the life of the complainant”. This law has been used by disgruntled former partners as a form of violent retribution against people living with HIV. This law stigmatizes people living with HIV. This law prevents people from getting tested and treated. It is imperative that we stop erroneously using this law to criminalize the sexual behaviour of people living with HIV.

Thank you for your time.

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Epidemiology and Population Health

Kate Salters

BC Centre for Excellence in HIV/AIDS

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Dr. Kate Salters, BC-CfE Research Scientist, gives testimony to the House of Commons Standing Committee on Justice and Human Rights regarding HIV non-disclosure criminalization

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