Criminal transmission of HIV Information

Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Others, including the United Kingdom, charge the accused under existing laws with such crimes as murder, fraud (Canada), manslaughter, attempted murder, or assault.

Criminal transmission of HIV is now better known as HIV non-disclosure, which is is the criminal punishment for not disclosing an HIV positive status. This can be intentionally or unknowingly not disclosing HIV status and then exposing or transmitting HIV to a person. HIV non-disclosure includes intentional transmission, accidental transmission, unknown transmission, and exposure to HIV with no transmission. People have been accused of and charged for HIV non-disclosure even if no harm was intended and if HIV was not actually transmitted ^[1].

Modes of transmission

HIV is spread when one of these bodily fluids: blood, semen, pre-seminal fluid, breast milk, rectal fluids, or vaginal fluids of an HIV-positive person comes into contact with a mucous membrane or bloodstream of an HIV-negative person ^[2]. HIV transmission can occur by:

• Unprotected sexual intercourse
• Sharing needles or other equipment in injection drug use
• Giving birth to or breastfeeding a child
• Receiving a blood transfusion or organ donation – although this is unlikely because blood and organ donations are extensively tested for HIV

Reducing chance of transmission

Having a low viral load decreases the chance of transmitting HIV. A person living with HIV who is taking effective antiretroviral therapy will have a viral load that becomes so low, it is undetectable (less than 50 copies of virus per milliliter) ^[3]. Undetectable viral loads are untransmittable ^[4]. Proper use of external condoms or internal condoms also greatly reduce any chance of transmission ^[3].

Legal situation

Canada

Though Canadian federal law does not contain any HIV-specific statutes, HIV transmission and exposure are otherwise prosecuted under general offense laws, such as aggravated assault or aggravated sexual assault ^[5].

Current law and policy

Commonly referred to as "HIV non-disclosure", criminal transmission of HIV in Canada is defined as a "realistic possibility of transmission" of HIV during sexual intercourse. ^[5] The Supreme Court of Canada defined "no realistic possibility of transmission" as (1) using a condom and (2) having a low or undetectable viral load. ^[5] However, the threshold for a low viral load was not defined until 2017 when the Criminal Justice System's Response to Non-Disclosure of HIV made conclusions about the current laws on HIV non-disclosure including that people with low viral loads (under 200 copies of HIV per milliliter of blood) should not be convicted under the criminal law. ^{[5] [6]}

In 2019, the House of Commons Standing Committee on Justice and Human Rights released a report on the criminalization of HIV non-disclosure in Canada with four recommendations for the House of Commons and the Canadian Government. ^[7] The committee recommended that a new law be created specifically for the transmission of HIV, instead of relying on pre-existing laws such as sexual assault. They recommended that this law be applicable only when HIV is actually transmitted and "HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission." ^[7] This allows for four different scenarios in which HIV positive people will not have to disclose their status because of the nature of the sexual encounter; current laws only allow for one specific scenario with multiple requirements. ^[5]

HIV researchers have criticized the recommendations for not going far enough to counteract the adverse effects that the current law imposes on women. ^[8] Although people living with HIV are generally aware of non-disclosure laws, many do not fully understand the law or understand when they do or do not have to disclose their status. ^[9]

Criticisms of current law

Research has been done on the effects of the criminalization of HIV non-disclosure. It has been demonstrated that these types of laws increase HIV stigma and negatively affect public health. ^{[10] [11]} HIV non-disclosure laws and criminalization of HIV transmission may make people less likely to access HIV testing ^[12] and less likely to disclosure their status ^[10] or discuss sexual health with a healthcare provider. ^[12] Although women only make up 10% of Canadian non-disclosure prosecutions, there is an overrepresentation of prosecuted sex workers, Indigenous women, and abuse survivors. ^[12] There is also a higher proportion of women and indigenous people involved in cases based on low levels of blameworthiness (i.e. difficult life circumstance, spontaneous sexual acts, compliance with authorities, condom use, and evidence that the accused was abused by the complainant). ^[6]