HIV non-disclosure charges not science-based, doctors say

Miscarriages of justice could result from a poor appreciation of the latest evidence on how HIV transmits, say a group of Canadian HIV physicians and medical researchers who want to clear up any confusion.

In Friday’s statement, doctors, scientists and experts from the Association of Medical Microbiology and Infectious Disease Canada and Canadian HIV/AIDS Legal Network say they’re concerned the Canadian justice system is unfairly prosecuting people who are HIV-positive and don’t disclose their status.

"We are concerned that actors in the criminal justice system have not always correctly interpreted the medical and scientific evidence regarding the possibility of HIV transmission, and may not have understood that HIV infection is a chronic manageable condition. This may lead to miscarriages of justice," Dr. Mona Loutfy of Women’s College Research Institute and her co-authors wrote in the Canadian Journal of Infectious Diseases & Medical Microbiology.

After reviewing the medical literature for the most recent evidence on HIV and its transmission, the authors concluded that using a condom or effective antiretroviral therapy poses a negligible possibility of transmitting HIV during vaginal-penile intercourse.

When the concentration of HIV falls below the concentration that can be detected by laboratory tests then the HIV-positive individual is said to have an "undetectable" viral load — achieving the goal of antiretroviral therapy.

Under Canadian law, people living with HIV can be sent to jail and registered as sexual offenders for life for not disclosing their status unless they use a condom and have an undetectable or low viral load. The group says fulfilling either of those conditions is enough, based on the science. 

The experts called those court rulings "unfair, harmful to both individual and public health, and at odds with the science." They urged Crown prosecutors and judges to exercise restraint.

"Misuse" of the criminal law does nothing to help curb the HIV epidemic and drives people further away from effective HIV prevention, care, treatment and support services, the Canadian HIV/AIDS Legal Network said.

The risks of other combinations of sexual acts, condom use and antiretroviral therapy were also described in the paper.

The authors also outlined their view that being spat on by someone who is HIV-positive poses no possibility of transmission, and that being bitten by an HIV-positive person poses no possibility of transmission unless the bite breaks skin and the HIV-positive person’s saliva contains blood. Even then, the possibility is negligible.

The experts said they were motivated by a professional and ethical responsibility to assist the criminal justice system to understand and interpret the science of HIV.