Medical or Legal?

"In an era of people dying of horrible opportunistic infections and prolonged agonizing deaths, it was a major impetus for many to engage in safer sex practices.

"We had a disease that was sexually transmitted, a disease that carries all kinds of connotations with it.  It brings out the worst in people when it comes to looking at people's sexual practices, sexual preferences and having sex.  We went through a period of stigma and death."  Don Kilby, M.D., Director of Health Services, University of Ottawa

In the early 1980s and up to the 1990s, contracting AIDS was a death sentence.  A slow, agonizing death was guaranteed those who become AIDS infected.  Until the advent of retroviral drugs people lived in fear of experiencing a lonely, agonizing and long-drawn-out journey to death.  "People were sick and people were dying."  Twenty years later, people are able to control HIV infection, and live fairly normal lives.

What HIV-infected men deplore, however, is that they must reveal to any potential sex partners that they are HIV-positive.  And this is the law.  Whether or not their HIV condition is under control and is not deemed to be infectious, the Criminal Code of Canada states they are legally obliged to disclose their HIV status to their sexual partners.

Criminal charges can be laid if they ignore that obligation.  And they could be facing charges ranging from aggravated sexual assault to murder.  In fact, there have been instances where heterosexual men have not divulged their status to female partners and the women subsequently learned they were infected, and some of those women have died of HIV-related causes as a result.

People with HIV must maintain their condition to ensure it is under control with life-long regular medical checkups that monitor viral loads and CD4 cell counts.  the viral load represents the amount of HIV in someone's bloodstream; the higher the viral load, the faster the CD4 cell count falls, which impacts the body's immune response, increasing opportunistic infection potential.

When the viral load is diminished dramatically or undetectable there is then little to no opportunity of transmission to someone else.  Those with a dropped CD4 count resulting from high viral loads must take daily medication to reverse the situation.  And as a result of the availability of antiretrovirals HIV has been altered from representing a death sentence to having a disease that can be treated, not cured.

In 1998 the Supreme Court of Canada ruled that people with HIV had a legal obligation to inform someone before taking part in sexual acts, that they have a disease carrying a "significant risk".  Violation of that law is liable to prosecution, whether or not the virus is transmitted. 

"Unfortunately, I think it is normalizing (criminalization).  It is bringing the criminal law and the language of the legal system into everyday discussion of HIV.  It becomes more natural to use criminal law to describe something that is a health issue.  It is a medical diagnosis that is determining potential criminality", explains an objector, Patrick O'Byrne, Associate professor at University of Ottawa.

On the other side of the equation is the opinion of Carissima Mathen, law professor at the University of Ottawa.  "It's an issue about the conditions under which people are entitled to choose with whom they have sexual contact.  It is a personal autonomy and a personal choice issue that the criminal law seeks to protect."

"But I do think that a person is entitled to that information if they ask for it.  If you don't give it to them, we are entitled to look into the why and I think there is the possibility that a crime has occurred."

The trouble is, people may not always enquire, out of a sense of delicacy, hoping that their sex partner will choose to divulge their status beforehand.  Which is precisely why there is a law requiring people with HIV to take the initiative and make that information known before engaging in sex.

Despite that people with HIV feel themselves to be disentitled to normal relations just like anyone else.  The simple fact is, they're not just like anyone else.  They may infect someone else with HIV.  There is no cure for it.  Their casual attitude might result in someone else having to undergo the same drug regimen and constant medical checks they must.

Diabetes is also a lifetime balance with a threat to human health that is desperately dire.  People with diabetes must see their doctors constantly to check the state of their heart, eyes, kidneys, nerves.  Their need to inject insulin multiple times daily, to test their blood sugar levels, to ensure proper management is roughly analogous to HIV sufferers.

But those with diabetes cannot threaten the health of their sex partners; diabetes is not transferable to others by contact, HIV is.