HIV criminalisation deters men from testing and can increase HIV transmission rates

09 April 2018

Findings show that fear of prosecution can drive new infections, as it puts men off knowing their status.

Outside of courthouse

A new study published in medical journal PLOS ONE highlights how laws criminalising HIV transmission may deter men who have sex with men from testing. The study found that 7% of respondents would be less likely to test as a result of non-disclosure laws in Canada, with knock-on effects on overall HIV-transmission potential.

Current laws in Canada state that people diagnosed with HIV have a duty to disclose their status before ‘a sex act that holds a realistic possibility of transmission’. Therefore knowing your own HIV status can lead to you being held responsible for non-disclosure and transmission.

The study (conducted between 2010 and 2012, but published last month) recruited 150 HIV-negative men who have sex with men attending a primary care clinic in Toronto. All were asked to complete self-interview questionnaires, including whether non-disclosure laws made them less likely to test for HIV.

Although it was only a relatively small proportion of the respondents who claimed to be put off testing by these laws, the study showed that this can have a big impact on HIV transmission rates at a population level.

After testing positive for HIV in Canada, most people are linked to care and able to access antiretroviral treatment. Effective treatment reduces the viral load of a person living with HIV, often to the point that they are no longer able to transmit the virus.

With this in mind the researchers were able to estimate the probable effect of reduced testing on HIV transmission at a community level.

They predicted that a 7% decrease in testing could lead to a potential 18.5% increase in HIV infections among the community. Overall people who didn’t test, and therefore were not on antiretroviral treatment, would account for 73% of the total transmission potential within the group, according to their calculations.

The predicted effects were thought to be so strong that, even if condom use increased as a result of these laws, transmissions may still go up, as it would not be enough of a change to compensate for these individuals not being enrolled on ART.

HIV criminalisation laws have further negative implications, as they create stigma around the virus, which can make it harder for people living with HIV to disclose their status, and negotiate condom use.

Since January 1989, at least 184 people living with HIV have been prosecuted in Canada for not disclosing their HIV status before sex.

The law changed in 2012, shortly after this study was conducted, so as to give a more specific definition of what constitutes a ‘realistic possibility of transmission’. As a result, a person living with HIV is no longer legally obliged to disclose their status if they use a condom and have a ‘low’ viral load. 

Yet many claim that this still 'overciminalizes' HIV. In 2017, the federal Justice Minister acknowledged the need to relax the law further, in a report which stated that HIV transmission is first and foremost a public health matter and that criminal law should only be used as a last resort. The report also recognised that those with an undetectable viral load should not face prosecution for non-disclosure as ‘this goes against the science’. However, these statements are not yet reflected in the law. 

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Written by Francesca Harrington-Edmans

Content Editor