News  The problem with criminalizing HIV transmission

Panellists discuss criminalization’s impact on HIV/AIDS stigmas and testing

Since May 2009, over 70 Canadians have been criminally charged for not disclosing to their sexual partners that they have AIDS. On Wednesday, a panel hosted by McGill on the “Criminalization of HIV/AIDS” discussed the implications of such practices, and the impact they have on the HIV/AIDS community as part of World AIDS Week at McGill.

The issue of criminalization is one of the single most divisive issues existing in the HIV community today, according to Mark Wainberg, the director of the McGill University AIDS Centre.

As the first panellist, Wainberg began by explaining why he felt criminalization of those who transmit HIV to their partners is an ineffective method of dealing with the issue.

“We create, through criminalization, a situation which creates incentives not to get tested as opposed to incentives to get tested,” Wainberg explained. He went on to say that he felt such policies created a stigma around the illness, and do not reflect the reality that the majority of HIV-positive individuals try to limit their risk behaviour and disease transmission.

Wainberg also spoke about the case of Johnson Aziga, a Hamilton, Ontario native who was convicted last April of two counts of first-degree murder for failing to tell at least 11 sexual partners that he had HIV. Wainberg stated that in such a case he understood the desire for criminalization, and the desire for the female sexual partners to seek revenge. “If I was on the jury, I would have voted to convict that son of a bitch. There is nothing anyone can say to extol this man. He is pure scum. He lied to 11 women, two of whom died from HIV,” Wainberg exclaimed. However, he also pointed out that in many cases, criminalization fulfilled an emotional need. “Canadian society should be guided by what is right, and not emotional satiation,” Wainberg added.

Professor Alana Klein of the McGill Faculty of Law continued the criminalization discussion in a similar vein. “I believe that everyone should disclose [that they have HIV]; however, just because something is bad, doesn’t mean that criminal sanction is the way to deal with these moral failures,” she said. Klein suggested giving public health officials a mandate to deal with the disclosure issue as a possible alternative to criminalization.

Like Wainberg, Klein also believed that there are too many uncertainties in the law to properly deal with disclosure issues, stressing the difficulties of applying the law effectively despite a disconnect between lawmakers and the minorities these laws affect. There are no laws specifically relating to HIV exposure. Instead, courts must apply general laws to HIV transmission, she explained. Klein noted, though, that many HIV activists have a problem with the equation of a lack of disclosure with murder, as in Aziga’s case.

“Most scientists, scholars, and activists involved with AIDS recognize that criminalization does little to prevent transmission,” she said in her closing remarks.

Norbert Gilmore, a senior physician at the McGill University Hospital Centre, ended the panel discussion. Gilmore, who has worked with AIDS patients since 1981, felt that the question of criminalization comes down to intent. “The law should be made not to criminalize people who carry the virus but to criminalize the behaviour of people who wilfully transmit the virus,” he explained.