HALIFAX — An October decision by the Supreme Court of Canada upheld a law that can see HIV positive people charged with aggravated sexual assault should they engage in a sexual act with another person without having disclosed their status.

The decision clarified that only those people who have a low risk of transmitting the virus thanks to medication and who use a condom are off the hook.

Still, the decision angered many HIV-AIDS advocates, who argued the criminalization of non-disclosure perpetuates the stigmatization and marginalization of HIV positive people. More than that, it can get in the way of adequate testing and treatment.

Jacqueline Gahagan is of the same mind. A professor of health promotion at Dalhousie University, she was disappointed by the Supreme Court’s negligible budge on this issue.

And as the director of the Gender and Health Promotion Studies Unit at the school, she sees how this decision can affect women particularly negatively.

On Jan. 15, Gahagan is giving a presentation entitled “HIV Testing and Disclosure: A Public Health or Legal Matter?” at Dalhousie. The Halifax Media Co-op caught up with her beforehand to discuss this ongoing issue.

Halifax Media Co-op (HMC): Why did the Supreme Court of Canada take another look at the criminalization of HIV non-disclosure?

Jacqueline Gahagan (JG): The earlier case, the Cuerrier case (in 1998), from the Supreme Court essentially was done at a time when current advances and treatment were not available and now we do have that. So, the revision is long overdue, particularly in light of anti-retroviral therapy that allows people’s viral load to be undetectable, which means their likelihood of transmitting the virus is negligible.

HMC: But the Oct. 5 ruling didn’t bring about much change at all; HIV positive people still, for the most part, must reveal their status. What do you say to the argument that this forced disclosure leads to further marginalization of an already marginalized group of people?

JG: I agree. From a health promotion and public health perspective I would suggest that criminalization of HIV transmission, and particularly in light of non-disclosure, is going to further stigmatize individuals already living with HIV, and it may in fact jeopardize their care and treatment.

This is also an issue that lies counter to the public health opinion that people should get tested in order to know their status. If you look at the current wording of the criminalization of non-disclosure, if you don't know your HIV status, i.e. haven't been tested, then there is no incentive for people to get tested. It's really counter-intuitive because roughly 25 per cent of the population living with HIV is unaware of their status because they've never been tested.

So we've got sort of conflicting messaging out there. On the one hand: get tested, know your status, and if you happen to find that you're positive then you're obliged to disclose it, and if you don't then you could face criminal sanctions. The other side of it is: don't get tested, don't know your status, and then you don't have to have any discussions around disclosure, and you can claim that you had no idea you were HIV positive.

HMC: How does this decision particularly affect women?

JG: As we know, women are often economically less well-off than men and in some instances their economic viability rests with the male partners that they're with, so husbands, boyfriends, male relatives, etc. And if they are also providing care for children — whether their own children or other people's children — and their HIV status is known, they're often the subject of harassment, of violence, of economic disenfranchisement.

They're kicked out of the home; they're cut off from financial resources from within families; they risk potentially having custody battles where they can lose custody of their children on the basis of their HIV status.

So there are a whole lot of gender-related impacts that face women and men differently around HIV non-disclosure — or around HIV disclosure in this case — and the repercussions that come from that.

HMC: What is your stance on this decision?

JG: I think that we need to take into consideration the context within which non-disclosure occurs. There are reasons why individuals who may know their HIV status may not be willing to disclose. So that's one part of the issue: that we actually can't fix that by using the heavy hand of the law.

I think we need to look at other upstream, primary prevention factors, particularly for women in Canada because we know that issues around poverty, around racial discrimination, (and) gender discrimination affect women in very specific ways. We're not looking at the context that places those women at risk; we're looking at further marginalizing and persecuting women from circumstances that already jeopardize their health.

So, I think we need to refocus this argument and look further upstream at ways of preventing HIV infection and not look at using criminal justice as a way of addressing HIV. And, further I would argue where we see the use of criminal sanctions against people living with HIV, it's often in light of a failure of public health interventions to get at the root of the problem.

HMC: How would you like to see those public health interventions improved?

JG: Greater emphasis on poverty reduction; on safe, affordable housing; on looking at how to reach youth with prevention messaging that actually resonates with them as opposed to using punitive measures that may actually close down discussions about how people can prevent HIV transmission; and when they are infected, how they can get access to timely care, treatment and support, including access to anti-retroviral therapies.

We need to more to prevent HIV infection in the first place and look at the context within which HIV risk occurs as opposed to looking at, after the fact, finding who's positive and who's not disclosing, and using criminal sanctions to undo something you can't undo.

HMC: Final words?

JG: Again I think criminalization of HIV transmission reinforces stigma and discrimination against people living with HIV. It discourages people from getting tested or treated for HIV for fear of being prosecuted; it potentially undermines trust between health professionals and health providers; and it more generally can prevent people from having open conversations about their sexual practices in looking for preventative advice because they're worried that by having those conversations they may actually placed themselves in jeopardy in terms of criminal sanctions.

This interview has been edited for length and clarity.