Tagged with Canada

How much evidence do you need?

Newly-elected AFAO vice-president Bridget Haire has a timely piece on the ABC Science website about HIV prevention technologies, calling for regulatory action to make these available in Australia.

If a person with HIV consistently takes effective anti-HIV medication, the chances of them infecting a sexual partner are close to zero. The condom, while remaining cheap, effective and sometimes convenient, is now just one part of the HIV prevention toolbox rather than the whole kit and kaboodle — in theory at least.

But in practice, access to these new forms of HIV prevention is constrained by regulatory systems, concerns about cost, and a fear of new technologies eroding the ‘condom culture’ that saw the whole scale adoption of condoms by gay men worldwide in the mid-80s, who perceived the threat of HIV, and improvised a form of protection.

Read the full article here.

Also recommended:

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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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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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Am I, or aren’t I?

our wedding
Above: An event the Canadian government now says never took place.

I woke up this morning to a text message from my husband suggesting I look at the news on same-sex marriage coming out of Canada. “They are a bit concerning,” he said.

Turns out he might not be my husband after all.

Lawyers representing the Canadian Department of Justice are arguing in a Court case that non-residents who married in Canada since 2004 are not legally married if they could not have been married in their country of residence.

Brent and I were married in British Columbia on 25 September 2004.

The case arises out of a peculiarity that those of us who were married in Canada have been aware of for some time: it’s easy enough to go to Canada and get married, but not so easy, when and if the time comes, to get divorced.

Canada’s divorce law carries a one-year residency requirement: to get divorced in Canada, one or both of the parties must have resided for at least 12 months in the province where the divorce is being sought. If you live outside Canada, you are supposed to get divorced in your home country. But that’s of little use if your home country doesn’t recognise your Canadian marriage. Australia, for example.

The case before the Court concerns an unidentified lesbian couple who married in Canada in 2005 and separated in 2009. One of the two lives in Florida, the other in the UK, both places where same-sex marriage is not explicitly recognised. They are seeking a divorce from the Canadian courts (the news reports don’t mention which court the matter is before) and the Canadian government is the respondent in the case.

A submission from the Department of Justice apparently argues that “in order for a marriage to be legally valid under Canadian law, the parties to the marriage must satisfy both the requirements of the place where the marriage is celebrated … and the requirements of the law of domicile of the couple with regard to their legal capacity to marry one another.”

In other words, if you can’t get married in your home country, you can’t get married in Canada either.

The couple are also seeking $30,000 in compensation from the provincial government, for negligent misrepresentation, in the case that their marriage is found to be invalid, which suggests that the government’s response didn’t entirely come out of the blue for their lawyer, like it did for the rest of us. They are reportedly represented by Martha McCarthy, a Canadian barrister who fought the Supreme Court case that legalised same-sex marriage across Canada in 2005.

McCarthy told the Globe and Mail:

It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity. It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything pro-active about it,” she said. “All the while, they were handing out licences to perform marriages across the country to non-resident people.

The response to the news has been one of shock. US sex advice columnist Dan Savage was married in Vancouver in 2005. He has written an extensive blog post on the developments, and is quoted in the Globe and Mail as saying, “When I got out of bed, I was a married man and as soon as I got on my Twitter feed I realized I had been divorced overnight.”

It’s an odd position for the Canadian government to take. The conservatives are currently in power in Canada, but they have said – and Prime Minister Stephen Harper has reiterated today – that they have no plans to revisit the issue. I share Savage’s hopes that “Hopefully this is just one rogue lawyer or two and not policy of Canada’s Conservative government. If it is Canada’s Conservative government then the issue has definitely been re-opened.”

UPDATE, just before posting: Dan Savage has tweeted that the decision appears to have been reversed. No details yet but I’ll add them as they come in.

UPDATE, 06:30 on 14 January: The Canadian Justice Minister has said all same-sex marriages performed in Canada are legally recognised and the government is working to ensure foreign couples married in Canada have access to divorce.

Edited, 08:54 (added quote from Martha McCarthy)

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