Canada: Prosecutions having negative impact on disclosure; Edwin Cameron speaks out

In my news story for aidsmap earlier this week, I wrote:

Over the past week, the global movement against criminalisation of HIV transmission received its biggest boost since the International AIDS Conference in Mexico last July. In rallies and meetings in Australia, Canada and Sweden leading judges, lawyers and politicians joined with HIV-positive advocates and civil society organisations to condemn the criminal justice system's current approach to HIV non-disclosure, exposure and transmission.

I've already posted more detailed information about the Australian meeting, one of the two events in Canada, and highlighted the situation in Sweden. Below I'm posting highlights from newspaper coverage of South Africa Constitutional Court Justice Edwin Cameron's speech in Toronto last Friday.

Update: The official text of Edwin Cameron's address is now available from the Canadian HIV/AIDS Legal Network website. (Une version française est disponible ici). An audio recording, which captures both the passion of his delivery, and some off-the-cuff changes, is available in the same location. Video may also be made available at a later date.

The Toronto Star ran a major article headlined, Judge slams criminalization of HIV, which put forward, without critique, Mr Justice Cameron's international policy arguments as to why Canada needs to think again about its nondisclosure law.

Canada's relentless practice of invoking the criminal law against people with HIV and AIDS is only intensifying the stigma surrounding the conditions and contravenes United Nations guidelines, argues a judge of South Africa's Constitutional Court, who is HIV-positive himself.

African countries that look to Canada as a world leader on human rights issues are getting the wrong message when it puts people with HIV/AIDS on trial for having unprotected sex, even when the virus has not been transmitted, Justice Edwin Cameron said yesterday.

"Canada's wide approach to exposure offences is sending out a terribly retrograde message to other countries, especially on my own continent, in Africa," said Cameron, who delivered the keynote speech last night to kick off a weekend symposium on HIV and human rights issues, hosted by the Canadian HIV/AIDS Legal Network.

With human immunodeficiency virus still steeped in so much stigma in Africa that many are afraid to be tested, Canada is not providing a good example of dealing rationally and justly with the epidemic, said Cameron, noting Canada is a "world leader" in targeting HIV-positive people for prosecution.

[...]

AIDS activists, Cameron said, must accept there may be instances in which criminal liability is justified, noting that one example might be the recent case in Hamilton of Johnson Aziga, convicted of first-degree murder for actively deceiving women about his HIV status and infecting them.

But Canada needs to rethink its sweeping use of the criminal law and question why it is singling out HIV-positive people for prosecution when the same Criminal Code powers are not being used against those who expose people to other potentially deadly conditions, he said.

"Let's take, for example, the two recent health scares, swine flu and the highly, highly contagious forms of tuberculosis. We had a case where somebody got onto an aircraft with a highly transmissible form of tuberculosis, and no one ever suggested that person should be prosecuted."

"Queer activist" Andrew Brett also wrote about Mr Justice Cameron's speech on rabble.ca. It's becoming clear that the fallout of the Johnson Aziga verdict is hitting HIV-positive Canadians really hard. The few I've spoken with personally are feeling under attack. Mr Justice Cameron, himself HIV-positive, feels their pain. Brett writes:

Earlier this year, a court in Hamilton, Ontario became the first in the world to convict a man of murder for failing to disclose his HIV-positive status to his sexual partners, two of whom later died of AIDS. Since then, criminal prosecutions have increased and the degree of charges being laid has been elevated.

In some cases, Toronto police have even issued “public safety alerts” with names and photographs of HIV-positive people who allegedly failed to disclose their status, asking their sexual partners to come forward. Cameron likened this practice to a proposal by a Swaziland parliamentarian to brand people with HIV/AIDS on the buttocks.

An article published on Tuesday in Xtra.ca, entitled Attempted murder the new aggravated assault? eloquently highlights the impact this culture of fear is having in Toronto.

Rita Shahin, associate medical officer for Toronto Public Health, says that public health can be required by law to tell police if a particular individual has tested positive for HIV.

"When the police get a complaint in front of them then they will come to us with a search warrant and if we have a file on somebody then we have to produce it," says Shahin.

However individuals who have been tested anonymously — through the Hassle Free Clinic's anonymous HIV-testing program, for example — will not show up in public health's records.

Although Shahin says public health hasn't yet seen a decrease in the number of people getting tested as a result of the recent charges laid, "it's definitely creating a lot of anxiety and especially for those people who are behaving responsibly it's [a question of] how do they protect themselves? How do they prove that they've disclosed to someone?"

[Angel] Parks [coordinator of the AIDS Committee of Toronto's Positive Youth Outreach programme] says she's also hearing from people living with HIV/AIDS (PWAs) who are afraid that they'll be charged even though they've disclosed.

"With any other criminal charge it's always relied upon for having forensic-type evidence and these cases seems to only be based on he-said, she-said scenarios," says Parks.

"Now they're are even more afraid of what the consequences will be when they do disclose... like what if things fall out in a relationship where disclosure has happened? What can they do to protect themselves to ensure they can provide a credible defence if such an incident did occur?"

Because public health also deals with complaints against individuals for nondisclosure this is a scenario Shahin has seen play out.

"That's why we have to really investigate the complaint to sort out, is it true? Is there a basis to the complaint or is it a relationship that's gone sour where somebody's being vindictive?"

Both Parks and Shahin recommend the recently published HIV Disclosure: a Legal Guide for Gay Men in Ontario, produced by the HIV and AIDS Legal Clinic (Ontario).

"It is meant to target gay, bi and men who have sex with men," says Parks, "but the information contained in it is applicable really to any person living with HIV.... They talk about how to protect yourself against malicious lies or attacks."

It's going to take some time before public opinion catches up with the idea that the Canadian criminal justice system's approach to HIV nondisclosure is at best flawed, and at worst, severly and negatively impacting on the human rights of people living with HIV, as this comment from a Toronto Star reader (agreed with by 15 others, and disagreed with by only one) suggests:

The carrier should still be charged: If a person with HIV has unprotected sex with another person who doesn't have HIV and doesn't inform his or her sexual partner that he or she has HIV, that person should be charged. I think the same would apply to someone who has herpes and doesn't inform his or her partner that he has it. Just because the unsuspecting sexual partner doesn't get HIV from the carrier doesn't mean that the carrier shouldn't be charged. It would be like saying that if you go into a bank to rob it and you are carrying a gun but don't use the gun, you shouldn't be charged with bank robbery. That doesn't make sense.

No, actually, its the gun analogy that makes no sense. Or is it the case that people with HIV are now thought of in Canada not just vectors of transmission but actually walking deadly weapons? It seems that when it comes to HIV-positive people, attitudes in 'conservative' Texas and 'liberal' Ontario are exactly the same.