HIV and the Law: Research

On World AIDS Day, December 1, 2017, the Department of Justice released the Criminal Justice System’s Response to Non-Disclosure of HIV. This report explores the question of HIV non-disclosure and the law in various contexts, including public health; medical evidence on treatment effectiveness; HIV transmission risk; and prosecutorial practices and considerations.

Charging practices can differ from province to province, and we don’t know how this report will impact cases moving forward.

The resources that follow below pre-date this report, yet provide important background information on how the law has been applied in HIV non-disclosure cases in Canada. These resources should not be considered as legal advice. If you have questions about a specific case, please consult a lawyer.

Research on the Criminalization of HIV Non-Disclosure

Research Roundtable on Criminalization of HIV and Women in BC: Research Priority-Setting Report Back (2015). On October 23, 2015, the Gender & Sexual Health Initiative (of the BC Centre for Excellence in HIV/AIDS), Canadian HIV/AIDS Legal Network, and Positive Women’s Network (PWN) on behalf of the Women, HIV and the Law Project held a one-day Research Roundtable for a small group of leading experts, including women living with HIV (WLWH), academics, AIDS support organizations (ASOs), clinicians, and legal and policy experts, to discuss the impact of the criminalization of HIV on women, and set research and advocacy priorities to inform policy and practice.

The Public Health Implications of Criminalizing HIV Non-Disclosure, Exposure and Transmission: Report of an International Workshop (2014) In April 2013 an international workshop was held in Toronto, Canada to support, encourage and further develop emerging research on the public health implications of criminalizing HIV non-disclosure, exposure and transmission. It was the first international meeting focused exclusively on sharing, critiquing and strengthening new empirical
research on this topic.

Ending overly broad HIV criminalization: Canadian scientists and clinicians stand for justice (2014):This peer-reviewed publication, authored by Cecile Kazatchkine, Edwin Bernard, and Patrick Eba, in the Journal of the International AIDS Society examines ‘overly broad HIV criminalization,’ providing an opinion from Canadian scientists and clinicians.

Canadian Consensus Statement on HIV and its Transmission in the Context of Criminal Law  (2014): Published in the Canadian Journal of Infectious Diseases & Medical Microbiology, this article statement was written by M Loutfy, M Tyndall, J-G Baril, JSG Montaner, R Kaul, & C Hankins. These Canadian medical experts on HIV, this statement promotes an evidence-informed application of the law in Canada. The statement is based on a literature review of the most recent and relevant scientific evidence (current as of December 2013) regarding HIV and its transmission. It has been endorsed by >70 additional Canadian HIV experts and the Association of Medical Microbiology and Infectious Disease Canada.

Special Critical Public Health Issue on HIV Criminalization and Public Health.The special issue was guest edited by Eric Mykhalovskly and featured editorials, research papers, and book reviews all on the theme of HIV criminalization.

The impact of criminalization of HIV non-disclosure on the healthcare engagement of women living with HIV in Canada: A comprehensive review of the evidence(2015): This journal article is written by S. E. Patterson, M, Milloy, G. Ogilvie, S. Greene, V. Nicholson, M. Vonn, and A. Kaida and is featured in the Journal of the International AIDS Society. Authors provide a comprehensive review of the evidence evaluating the impact of the criminalization of HIV non-disclosure, specifically for women living with HIV, illustrating their experiences in accessing the health care system (for testing and diagnosis, etc.).

The public health implications of HIV criminalization: Past, current, and future research directions (2015): An editorial written by Eric Mykhaloyskiy in Critical Public Health examines the implications of increasing the use of criminal law to regulate the risk of HIV transmission among individuals living with HIV. Specifically, this article reviews past and present literature on the issue of criminalization and sets out potential future directions for research, policy, and practice.

HIV disclosure as practice and public policy(2015): Published in Critical Public Health, this article was written by B. Adam, P. Corriveau, R. Elliot, J. Globerman, K. English, and S. Rourke. Authors report on interviews with 122 people living with HIV, a subset of study participants from the Ontario HIV Treatment Network Cohort Study, to gain a better understanding of participant’s perceptions of disclosure expectations and responsibilities. Results of the study conclude the increasing criminalization of HIV non-disclosure does not address the complexity of HIV transmission, making it unlikely to reduce HIV transmission.

Impacts of criminalization on the everyday lives of people living with HIV in Canada (2014): In light of the increasing number of prosecutions for the nondisclosure of HIV status, this peer-reviewed publication, authored by Barry D. Adam, Richard Elliott, Patrice Corriveau, and Ken English, in Sexuality Research and Social Policy, presents findings based on interviews with 122 individuals living with HIV. The interviews attempt to examine the impacts of criminalization on the lives of people living with HIV, and study findings report a heightened sense of fear, vulnerability, and stigma felt by participants – “consequences that can run contrary to the ostensible objective of discouraging behaviour likely to transmit HIV.”

“Criminalization Creep”: A brief discussion of the criminalization of HIV/AIDS nondisclosure in Canada (2012): This research publication was composed by E. Dej and J.M. Kilty and is featured in the Canadian Journal of Law and Society. Authors explore the evolution of the criminalization of HIV/AIDS non-disclosure in Canada, focusing specifically on what has been termed “criminalization creep”, referring to the “increasing numbers of people are charged with increasingly severe crimes”. The article concludes by offering some avenues for future research on this topic and highlights the need for a more comprehensive gender-based analysis approach.

Who? What? Where? When? And with what consequences?: An analysis of criminal cases of HIV non-disclosure in Canada (2012): This article, written by Eric Mykhalovskiy and Glenn Betteridge and published in the Canadian Journal of Law and Society, explores the number of criminal cases of alleged HIV exposure/transmission resulting from HIV non-disclosure in attempt to visualize temporal and demographic patterns in Canada. Authors also make important reference to a community-based action research project in Canada that is committed to reducing the harms associated with the criminalization of HIV non-disclosure for persons living with HIV/AIDS.

The gender of lying: Feminist perspectives on the non-disclosure of HIV status (2012): Emily Mackinnon and Constance Crompton published this article in the University of British Columbia Law Review; it explores allegations of HIV transmission on the basis of there being “significant risk of serious bodily harm” and questions the public’s understanding of HIV transmission. Further, authors propose that the issue of HIV non-disclosure be examined from a feminist perspective.

Criminal law and public health practice: Are the Canadian HIV disclosure laws an effective HIV prevention strategy? (2012): This peer-reviewed publication, authored by Patrick O’Byrne in Sexuality Research and Social Policy, examines the effect of criminal law on public health’s efforts to reduce the HIV exposure and transmission.

Criminalizing HIV transmission and exposure in Canada: A public health evaluation (2011): In this article published in Health Law Review, Sarah Drummond provides a situational-type analysis of HIV non-disclosure criminal cases in Canada by using a public health framework to evaluate the arguments for and against the criminalization of HIV transmission and exposure.


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