Introduction
In 2012, the Supreme
Court of Canada ruled that people living with HIV (PLWH) must disclose their
HIV status to sexual partners prior to sexual activity that poses a “realistic
possibility” of HIV transmission for consent to sex to be valid. The Supreme Court
deemed that the duty to disclose could be averted if a person living with HIV
both uses a condom and has a low plasma HIV-1 RNA viral load
during vaginal sex. This is one of the strictest legal standards criminalizing
HIV non-disclosure worldwide and has resulted in a high rate of prosecutions of
PLWH in Canada. Public health advocates argue that the overly broad use of the
criminal law against PLWH undermines efforts to engage individuals in
healthcare and complicates gendered barriers to linkage and retention in care
experienced by women living with HIV (WLWH).
Methods
We conducted a
comprehensive review of peer-reviewed and non-peer-reviewed evidence published
between 1998 and 2015 evaluating the impact of the criminalization of HIV
non-disclosure on healthcare engagement of WLWH in Canada across key stages of
the cascade of HIV care, specifically: HIV testing and diagnosis, linkage and
retention in care, and adherence to antiretroviral therapy. Where available,
evidence pertaining specifically to women was examined. Where these data were
lacking, evidence relating to all PLWH in Canada or other international
jurisdictions were included.
Results and discussion
Evidence suggests that
criminalization of HIV non-disclosure may create barriers to engagement and
retention within the cascade of HIV care for PLWH in Canada, discouraging
access to HIV testing for some people due to fears of legal implications
following a positive diagnosis, and compromising linkage and retention in
healthcare through concerns of exposure of confidential medical information.
There is a lack of published empirical evidence focused specifically on women,
which is a concern given the growing population of WLWH in Canada, among whom
marginalized and vulnerable women are overrepresented.
Conclusions
The threat of HIV
non-disclosure prosecution combined with a heightened perception of
surveillance may alter the environment within which women engage with
healthcare services. Fully exploring the extent to which HIV criminalization
represents a barrier to the healthcare engagement of WLWH is a public health
priority.
Below: Summary of the historical and current case law for HIV non-disclosure, reflecting two key rulings by the Supreme Court of Canada
Below: Gardner's cascade of HIV care. Figure illustrating key steps in the cascade of HIV care, from primary HIV infection to viral suppression
By: Sophie E Patterson,1,2 M-J Milloy,2,3 Gina Ogilvie,3 Saara Greene,4 Valerie Nicholson,1 Micheal Vonn,5 Robert Hogg,1,2 and Angela Kaida§,1
1Faculty of Health Sciences, Simon Fraser
University, Burnaby, BC, Canada
2BC Centre for Excellence in HIV/AIDS, St
Paul's Hospital, Vancouver, BC, Canada
3Faculty of Medicine, University of British
Columbia, Vancouver, BC, Canada
4School of Social Work, McMaster
University, Hamilton, ON, Canada
5British Columbia Civil Liberties Association,
Vancouver, BC, Canada
§Corresponding author: Angela Kaida,
Faculty of Health Sciences, Simon Fraser University, BLU 10522, 8888 University
Drive, Burnaby, BC, Canada V5A1S6. Tel: +1 778 782 9068. Fax: +1 778 782 5927.
(Email: ac.ufs@adiak_alegna)
