Countries, including Canada, are prosecuting people with HIV because they misunderstand science, leading researchers say

People with HIV are being unjustly prosecuted around the world, in large part because courts do not have a good grasp of medical research, say some of the world’s leading scientists.

“The application of up‐to‐date scientific evidence in criminal cases has the potential to limit unjust prosecutions and convictions,” said a group of top medical researchers led by Françoise Barré‐Sinoussi, a co-discoverer of HIV, in a consensus statement issued at the International AIDS Conference in Amsterdam.

According to the statement, 68 countries worldwide have laws that make non-disclosure, exposure or transmission of the virus a crime, and 33 other countries use different criminal provisions in similar cases.

Most cases involve sex between consenting partners or instances of kissing, biting or spitting in which there is no transmission of HIV.

Prosecutions are driven by the false beliefs that everyone with HIV is infectious and that infection with the virus is a death sentence, the scientists say. In fact, people taking antiretroviral treatment have suppressed viral loads and are essentially non-infectious.

The harsh, ill-informed laws drive people living with and at risk of infection into hiding and discourage them from being tested, said Linda-Gail Bekker, president of the International AIDS Society.

"Simply put, HIV criminalization laws are ineffective, unwarranted and discriminatory,” she said. “These laws have one thing in common: They misstate how HIV is transmitted.”

Edwin Bernard, global co-ordinator of the HIV Justice Network, said a handful of countries, including Canada, stand out for their aggressive approach to prosecution.

“The majority of the cases occurred in the United States, Belarus, Russia, Ukraine, Canada and Zimbabwe,” he said.

There have been 210 cases since 1989 in Canada in which the HIV status of the person charged was a central issue, according to the Canadian HIV/AIDS Legal Network. In most of those cases, there was little or no chance of the virus being transmitted because of condom use, low viral load or low-risk activities such as oral sex. Yet the majority resulted in convictions.

Four years ago, leading Canadian AIDS researchers, led by Julio Montaner of the B.C. Centre for Excellence in HIV/AIDS, issued a similar consensus statement in Canada.

That led federal Justice Minister Jody Wilson-Raybould to issue a statement on World AIDS Day in 2016 acknowledging that there was “overcriminalization of HIV” in Canada and that the “criminal justice system must adapt to better reflect the current scientific evidence on the realities of the disease.”

Last year, the federal Justice Department issued a report titled “Criminal Justice System’s Response to Non-Disclosure of HIV.” It said the courts need to recognize that HIV is first and foremost a public-health matter and that the use of a blunt instrument such as criminal law should be a last resort. The report also noted that, when the law is used, it tends to disproportionately affect Indigenous, gay and black people.

However, despite increased awareness, there have been no prosecutorial directives cautioning against pursuing cases involving HIV non-disclosure by people with little or no risk of transmission.

One of the top scientific papers presented at the Amsterdam conference showed that people with low viral loads have virtually zero chance of transmitting HIV to their sexual partner, even if they do not use condoms.

That spurred a movement with the slogan “U = U, Undetectable = Uninfectious,” and Canadian Health Minister Ginette Petitpas Taylor wore a “U = U” T-shirt when she addressed the conference.