World AIDS Day

December 1^st will mark the 30^th anniversary of World AIDS Day, and this year’s theme is “Know Your Status.” It has always been vital to know your HIV status, so that if you are HIV-positive, you can follow up and get the treatment, healthcare and other supports that you need. Knowing your status is all the more important as well, in light of U=U. Undetectable = Untransmittable reflects the growing scientific evidence that people living with HIV do not pass the virus to their sexual partners if they are on effective treatment.

Yet we all know that being HIV-positive is not “just” a medical diagnosis. Stigma remains a challenge in considering testing, the testing experience, and living with HIV. Criminalization of people living with HIV, which is intricately connected to stigma, sadly remains a monumental issue. Since the fall of 2017, the Canadian Coalition to Reform HIV Criminalization has been seeking the support of organizations for its Community Consensus Statement, which “calls for some specific actions that federal, provincial and territorial governments should take to end unjust criminal prosecutions against people living with HIV.” Number one on the list of calls to action reads:

Federal and provincial Attorneys-General should develop sound prosecutorial guidelines to preclude unjust HIV prosecutions. Such guidelines must reflect current scientific knowledge and the principle of the least intrusive, most effective response.

Last year on World AIDS Day, many of us were greatly encouraged when Federal Justice Minister Jody Wilson-Raybould released the report Criminal Justice System’s Response to Non-Disclosure of HIV. This included the official government comment in its news release, notably that “HIV is fundamentally a public health issue.” As we head into a year since the release of the report, what measures of change have we seen?

Not enough, say activists. Recently the Canadian HIV/AIDS Legal Network provided an update on activities over the past year – noting “Nice talk but little action” since the release of the federal justice minister’s report. The update does acknowledge that Ontario and Alberta have now confirmed they won’t prosecute allegations of HIV non-disclosure in cases where the accused person living with HIV has a suppressed viral load (i.e., under 200 copies/ml) for at least six months (more consistent with the science and U=U). We wish we had the same confirmation here in BC.

In March 2018, the BC Prosecution Service released an updated Crown Counsel Policy Manual, which include Sex-2, specifically to address instances of HIV non-disclosure. In the blog post, BC’s New Prosecutorial Guidelines on HIV Non-Disclosure Murky and Troublesome, I commented on PAN’s concerns regarding the new policy, concerns shared by the Legal Network, Positive Living BC, and many others. Greatest of these is the glaring omission of any mention of the science-based evidence gold standard reference, the Risk of Sexual Transmission of HIV from a person living with HIV who has an undetectable viral load.

PAN sent a letter to BC Attorney General David Eby on June 25, 2018, noting “The failure of the BC Prosecution Service to adopt an evidence-based approach is of great concern.” In his response, Minister Eby essentially said his hands are tied:

“It is not my role to become involved in the day-to-day operations of the BCPS [BC Prosecution Service]. The BCPS manages the prosecution function on behalf of the Attorney General. … British Columbia is very different from most other jurisdictions in Canada. In British Columbia it is Crown Counsel, not the police, who decide whether criminal charges should be approved.”

Not satisfied with this, PAN followed up with a letter to Minister Eby on October 26th 2018, restating our concerns about the status of HIV criminalization in BC. In that letter we requested that the Minister consult with PAN, our members, scientific and legal experts as well as people living with HIV to discuss current prosecutorial policy and practice in BC regarding the non-disclosure of HIV. We also called on the Minister to adopt a prosecutorial directive to halt any potential injustice from occurring in HIV-related prosecutions. We also noted:

“The BCPS has been unwilling to review its new policy or to consult with concerned legal and scientific experts and community-based organizations, which has been disappointing. Meanwhile, there have been significant developments in the science that underscores the need to limit HIV criminalization – namely the recent Expert consensus statement on the science of HIV in the context of criminal law.”

The ongoing criminalization of HIV was a topic that was discussed extensively during the PAN fall conference (October 30^th and 31^st) and in the weeks following. Thirty-seven PAN member organizations have added their names in a specific endorsement of this letter. We are united in our sense of urgency about putting an end to the fear of prosecution, among people living with HIV in BC. This environment of fear and stigma also complicates the work of service providers and those on the front lines of prevention and support.

As of the time of writing of this piece, I have just received word that Attorney General Eby has committed to meeting with representatives from PAN in the coming weeks – a welcome development! I look forward to providing an update on this meeting, once it has happened. In an era of U=U, let us not see another World AIDS Day where the threat of unwarranted prosecutions continues to loom over people living with HIV in this province.