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Canada Supreme Court decision makes criminals of people with HIV

In a disappointing decision, the Supreme Court of Canada has wound back the rights of people with HIV significantly, finding that sex without disclosure is a criminal act except where the accused both has low viral load and condoms are used.

The judgments in two cases – R v. Mabior and R v. DC (the links go to the full judgment in each case, courtesy of the HIV Justice Network) – were handed down in Ottawa overnight, and have been widely condemned by HIV activists in Canada and around the world.

Many news reports have failed to grasp the significance of the ruling, focusing on the fact that the Court found that there are cases where disclosure is not required, rather than on the narrowness of the circumstances in which that is the case.

Mr Mabior was charged with nine counts of aggravated sexual assault relating to his failure to disclose his HIV status to nine women before he had sex with them. None of the women contracted HIV. At trial, Mabior was convicted on six of the nine charges, and acquitted on the remaining three. The Court of Appeal reduced the number of convictions to two, and the Crown appealed that decision to the Supreme Court, which has now restored three of the four convictions, meaning Mr Mabior will be sentenced for five counts.

The timeline of the case shows the Canadian courts trying to make sense of the principle that there should be disclosure where there is a significant risk of transmission:

  • The trial judge found that disclosure was required except where condoms were used;
  • The Court of Appeal found that either condoms or undetectable viral load were sufficient;
  • The Supreme Court found that both condoms and low viral load are required.

This is a significant backward step for people with HIV in Canada, who the Court seems to think of as criminals-in-waiting. The justices seem to have been incapable of grasping the idea of a reasonable level of risk. As Edwin Bernard points out, “the risk of HIV transmission with a high viral load and no condoms via insertive vaginal sex is estimated by the CDC to be just 5 per 10,000 exposures (i.e. 1-in-2000).” That risk is reduced by either condom use (80% reduction of risk according to the widely accepted Cochrane condom study) or undetectable viral load (96% according to the HPTN 052 study). So the Court believes that a 1-in-10,000 risk of transmission (vaginal sex with a condom) or a 1-in-50,000 risk (vaginal sex with undetectable viral load) represent a “realistic possibility of HIV transmission” and the bar has now been raised to a 1-in-250,000 risk (vaginal sex with undetectable viral load and a condom).

As well as potentially criminalising many thousands of HIV-positive Canadians for simply keeping their HIV status private while engaging in consensual, low-risk sex with no transmission of HIV, this case will discourage many people from testing for HIV: why test for HIV when the law treats you as a potential criminal if you test positive? That will lead to increased HIV transmissions, as we know the majority of new infections come from people who do not know their HIV status and are consequently not on treatment (high viral load) and less likely to use condoms.

This response from Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, neatly summarises the devastating impact of this decision:

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.

Criminal prosecutions for HIV exposure and transmission have been rising worldwide, including here in Australia, and it is an ongoing challenge for HIV advocates to bring the law in line with reality, balancing the need to protect individuals with the human rights of people with HIV. The issues are complex but unfortunately, courts around the world have shown themselves to be needlessly conservative and often wilfully ignore scientific evidence, placing virtually all of the onus for HIV prevention on people with HIV and often, as is the case in Canada, criminalising behaviour which has no risk of HIV transmission whatsoever, in a real-world sense.

(Note: The numbers in the paragraph starting “This is a significant backward step…” are rough calculations made by me based on the results of several different studies and are meant to be illustrative of the levels of risk the Court has been dealing with, rather than scientifically valid statements of risk.)

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Bryce Courtenay: ‘I’m sorry’

Best-selling Australian author Bryce Courtenay has apologised for his use of the term ‘innocent’ to describe people with medically-acquired HIV/AIDS.

After the publication of his book April Fool’s Day in 1993, Courtenay was criticised for describing his haemophiliac son, Damon, as an innocent victim of AIDS.

In an interview broadcast on ABC Radio National’s Breakfast program this morning, Courtenay said:

The word ‘innocent’ was unfortunate, it really was. It was never used in the book and I think I used it once. People had a — certainly, homosexual people — had a right to be angry. But the net result of April Fool’s Day was the most important book I think I’ve ever written and had it not been for Damon saying, “Dad, you have to tell the world that it’s not a punishment from God; it’s a virus,” I may never have written the book. […]

But yes, for anybody I offended with the word ‘innocent’ I humbly apologise because we’ve come a long way since.

It’s good that Courtenay has finally acknowledged his mistake, albeit 17 years after the outcry it caused. While no compassionate person could fail to sympathise with Courtenay’s grief at losing his 24-year-old son, separating people with AIDS into ‘innocent’ and ‘guilty’ victims is plainly offensive, as it suggests some people with the virus deserved to get it, or are culpable for the ‘innocents’ infection. Language like this led to increased stigma among gay men, who were blamed for the spread of HIV at the very time they were taking the lead in combating and containing it.

The Australian Federation of AIDS Organisations publishes a media guide that explains why the term ‘innocent victim’ is offensive:

‘Innocent victims’ is usually used to describe children with HIV, or people with medically-acquired HIV infection. It implies that people infected in other ways are guilty of some wrong-doing and deserved to be infected with HIV. This feeds stigma and discrimination and should be avoided.

Courtenay, who is 79, has announced that he has terminal cancer and that his current book will be his last.

(Hat tip: Daniel Reeders)

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Public Health Act 2010 (NSW) starts today

New South Wales has a new Public Health Act starting today, with a small but important change in the way the Act deals with HIV.

The revised Act was passed by the previous Labor government, but has been waiting for gazettal for the last two years. NSW is one of two states in Australia (the other is Tasmania) that legally mandate HIV disclosure before sex, and the changes to the Act provide a new defence to prosecution for non-disclosure if the HIV-positive person can show they took ‘reasonable precautions’ to prevent transmission.

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Grim reaper ads a ‘missed opportunity’

The Queensland Association for Healthy Communities has responded to the state government’s new HIV prevention scare campaign, calling it a ‘missed opportunity’ in an article in the Star Observer.

“While we welcome increased public attention to HIV, this is a missed opportunity the update people on the reality of living with HIV today,” [QAHC CEO Paul] Martin said.

“It is also a missed opportunity to encourage people who may be at risk to come forward for testing and treatment and to inform and remind people how to prevent transmission of HIV.”

Responding to the criticism of the ad, Queensland Health Minister Lawrence Springborg said, “We needed a campaign that would reach everybody.”

Well, no. While ‘everybody’ should be aware of HIV and take steps to prevent themselves, not ‘everybody’ is at equal risk. More than 80% of people diagnosed in Queensland are gay men, which is why previous Queensland governments funded QAHC to do prevention work targeted at gay men. Spending a half-million dollars on a TV campaign to tell ‘everybody’ about HIV is not a cost-effective way to educate people who are at real risk.

Yours truly also gets a mention in the story:

Local LGBTI community member Paul Kidd released his own version of the new commercial on YouTube supporting QAHC, titled ‘Lawrence Springborg Shouldn’t Be Making This Ad’.

Read the full Star Observer article, or my earlier post on this subject, with my remixed version of the video.

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The Grim Reaper died in the ’80s

The Bouverie Centre’s Jennifer Power on the Queensland government’s HIV prevention efforts:

The government argues that de-funding QAHC was a response to rising HIV rates — evidence of QAHC’s lack of effectiveness — not an anti-gay agenda. But it would be a concern if HIV prevention in Queensland was to become more conservative, with little acknowledgement of the needs or interests of gay men.

Australia is known as a world leader in HIV prevention largely because the federal government at the time had the foresight to see that community-led organisations such as QAHC were best placed to deliver targeted HIV prevention campaigns to the communities most at risk.

The Grim Reaper died in the 80s – time for a new approach to HIV prevention

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It’s Different Now

As a follow-up from my previous post, take a look at this amazing campaign coming out of Vancouver. Unlike the Queensland campaign, this effort is open and honest about the reality of living with HIV today. It presents HIV testing as a personally and socially worthwhile thing to do, and situates that action within a broader framework of ultimately stopping HIV.

Australian HIV organisations can’t even make up their mind whether or not to accept the evidence about treatments as prevention, while the rest of the world embraces our first real chance to actually end HIV infections with innovative campaigns like this.

With all the talk about how our HIV response will look at the 2014 International AIDS Conference in Melbourne, this video shows just how far behind the curve we are.

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Dude with a scythe

The Grim Reaper TV advertisement has cast a shadow over the HIV response since it was first aired more than a quarter century ago. The original ad, with its foreboding “Always use a condom — always” tagline and grim predictions that AIDS could “kill more Australians than World War Two,” has often been credited with raising awareness of HIV in Australia. It’s also been rightly criticised for having the unintended consequence of increasing stigma around HIV and towards gay men.

Those surreal bowling reapers were supposed to represent death, but too many people read them as representing gay men, hurling a deadly virus at the innocent women and kids at the end of the alley. The ad fed into a climate of fear and hysteria and generated a great deal of hateful commentary towards gay men and those living with HIV, who were seen as the diseased vectors of a plague that at the time seemed certain to sweep through the ‘innocent victims’ of the heterosexual community.

Despite its many failings, we’ve never quite shaken off Mister Grim and his bowling buddies. The ad is so widely believed to have been a smashing success that barely a year has gone by in the last quarter century when some ill-informed government minister or pundit calls for a ‘new grim reaper campaign’ to scare people into behaving more sensibly. Luckily, to date those calls have been largely resisted.

All that changed this last weekend with the launch of We Shouldn’t Be Making This Advert, a new TV advertisement from the Queensland government, the first evidence we’ve seen of its new ‘in-house’ approach to HIV prevention following the shock de-funding of the Queensland Association for Healthy Communities. And there, proud as punch, is our old friend Grimsby, not looking a day older despite the intervening decades, ready to scare us all back into using condoms.

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How to fight an epidemic of bad laws

“The law can seem remote, arcane, the stuff of specialists. But it isn’t, because for those of us who live in democracies, the law begins with us,” says Shereen El-Feki, vice-chair of the Global Commission on HIV and the Law, in this TED talk.

The talk is a very fine summary of the issues around HIV criminalisation and its unintended effects. The comments below the video, alas, show how far we have to go.

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The great leap backwards

Queensland’s LGBT and HIV communities have been hit with a double whammy this morning, showing just how dangerous the new LNP government in that state is.

First came the news that the Queensland government is set to overturn the state’s civil union laws. With a new poll showing that 50% of Australians are in favour of marriage equality, and just 33% opposed, the reported LNP plans represent the opening of a new front in the war on queer civil rights in this country. But given the LNP’s opposition to the legislation when it was passed, it doesn’t come as a complete surprise.

Much more troubling is the announcement this morning that the government has, without warning, pulled all funding from Healthy Communities, the only LGBT health organisation in the state and the front line of Queensland’s HIV prevention effort. Formerly the Queensland AIDS Council, Healthy Communities has been continually funded by Queensland governments of all political stripes since 1988, and currently holds (or rather, held) government contracts valued at $2.6 million for HIV prevention and LGBT health work.

In a press release (PDF link) issued this morning, Healthy Communities has confirmed that 26 of their 35 staff will lose their jobs as a result of the defunding decision.

This is an appalling, short-sighted, ideologically driven decision that will hurt LGBT people in Queensland. Cutbacks in HIV prevention funding in Queensland and Victoria between 1998 and 2006 led to pronounced increases in HIV infections, and this will happen again now.

According to the Queensland health minister, Lawrence Springborg, Healthy Communities is being defunded because it has “lost its way” and that funding is “made available for health campaigns, not advocacy.” This shows just how out of touch the minister is – it displays a complete absence of understanding of the basic principles of health promotion and its smacks of an ideological approach.

Springborg says the LNP government will fund a new AIDS Council – there’s no detail on when that will happen or how, but we can expect it will be a timid, compliant body with no real attachment to the community it is supposed to serve.

Elsewhere: A thoughtful post on the decision on View from the Quarterdeck.

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Farmyard shenanigans

First it was ‘Pig AIDS‘, now Australia’s agricultural industries are under threat from ‘Apple Herpes‘. No matter where you look, increasingly our food has a sexually-transmitted infection.

And the common link? Senator Nick Xenophon, whose involvement in both stories suggests he has some explaining to do.

Or maybe Xenophon and the farmers’ lobby could just lay off the venereal metaphors.

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