10/04/2012 08:34 EDT | Updated 12/03/2012 05:12 EST

How HIV Law Could Spread the Disease

On Friday morning, the Supreme Court of Canada will rule on a particularly contentious issue -- the question of if/when an HIV-positive person is required to disclose their status. In revisiting the R v Cuerrier decision of 1998, the SCC is expected to review and revise their previous decision, and will hopefully apply a rational, science-based approach to help create guidelines for disclosure. At the crux of Cuerrier was the issue of consent, and in 1998, the SCC ruled that one could not reasonably consent to sexual activities without knowing their partner's HIV status; therefore, failure to disclose was considered tantamount to aggravated sexual assault, because there could be no way of giving informed consent to a partner if one wasn't informed of their status beforehand.

There are several ways of looking at HIV non-disclosure; as an issue of a) negligence; b) recklessness; or c) maliciousness. In the first case, some people don't get tested because they don't think it's important to do so, or because they don't feel comfortable disclosing details of their sexual activities to health professionals.

In this case, the stigma of having multiple partners or engaging in certain sexual acts can make it hard to access these services, particularly for those in non-urban areas. That's why services such as the anonymous testing strategies employed by the Hassle-Free Clinic are so important. Individuals have a personal responsibility to ensure their own sexual health, but we also have a social responsibility to make these services accessible and non-judgmental, so as not to deter people from acting responsibly.

Recklessness is merely exacerbated by the legal situation. Some people don't get tested simply because they don't want to know their status, and because they're worried that knowing could have serious legal implications. I agree that it's irresponsible to engage in any sexual activity when you have doubts about your STI status, but because the law only applies to those who know their status, not knowing provides a degree of legal deniability -- and it comes at the expense of one's personal and sexual health.

This is perhaps the most troublesome aspect of using legal sanctions to deal with what is really a public health issue; people will actively avoid getting tested because it might help them avoid legal consequences. In these cases, it is clear that the legal situation is at odds with the public health goals of preventing further spread of STIs, and most troublesome of all, ACT estimates that as many as 25 per cent of Ontarians who are HIV-positive don't even know it.

Lastly, there's the issue of maliciousness, which unsurprisingly, gets most of the media attention. Cases like Johnson Aziga, who had unprotected sex with over a dozen women despite knowing he was HIV-positive, are emotionally-charged situations that evoke the most discussion. But cases like these are definitely the exception, rather than the rule.

The vast majority of HIV-positive people are not criminals, and yet the current use of Cuerrier-inspired criminal charges make that very assumption about them. Rarely do these prosecutions take recent medical research into account -- details such as viral load, condom use, and other factors aren't usually considered during criminal trials. Hopefully, the SCC will examine these issues in detail, and render a judgement that is based on rationality and science, rather than prejudice and fear.

The phenomenon of risk compensation can help us view this situation somewhat differently. It suggests that people alter their behaviours to become more risky when other factors are introduced that decrease their risk. In one study in Germany, which was successfully replicated in both Canada and Denmark, drivers who had new cars equipped with anti-lock brakes were more likely to drive faster, follow more closely, and brake later than drivers in cars without ABS. The implication here is if you rely on something else to reduce your risk for you, then you'll be less likely to manage your risks yourself. This is also called the Peltzman Effect, and it adds a worrying new element to this debate.

The same situation applies to HIV disclosure requirements. If you assume that you're only at risk if the person discloses their HIV-positive status, then you'll be less likely to take the necessary steps to protect yourself. That means society will see a decrease in the use of safer-sex practices, especially decreased condom use, because everyone will assume that their partner will be legally obligated to tell them if they're HIV-positive.

This is an incredibly dangerous approach to take, and by putting the onus entirely on an HIV-positive partner to disclose their status, that means HIV will be needlessly spread by those who are unaware of their status, or feel unable to disclose for any number of reasons.

Ultimately, we are all responsible for our own sexual health, and we should always take the necessary steps to keep ourselves healthy and safe. Any laws that deter people from getting tested, or give them a false sense of security about their sexual risk, are problematic, and will necessarily get in the way of efforts to stop the spread of STIs once and for all.

A longer version of this article originally appeared on the author's website,