Criminalization of HIV: an important acquittal

Undetectable = Untransmittable

Positive signal. A Canadian woman living with HIV was acquitted on August 11 by the Ontario Court of Appeal (State of Canada) in an HIV criminalization case involving her. In 2013, Jennifer Murphy was found guilty of “aggravated sexual assault for HIV non-disclosure” and sentenced to more than three years in prison as well as having her name added to the sex offender registry for life. . He was accused of having had sexual intercourse without a condom with a partner without having previously informed him of his serological status. A test had shown that his viral load was undetectable, but at the time the effectiveness of Tasp (treatment as prevention) was not yet unanimous, including among HIV specialists. We have to wait until March 2014 and the results of the Partner study for the Tasp finally becomes a scientific consensus.

During a new court hearing held on August 11, a new expert report proved that, even without the use of a condom, the young woman had not put her partner at risk. Undetectable = Intransmissible (I = I). “This case is an important step in the fight against HIV criminalization,” commented India Annamanthadoo, member of the Canadian Coalition to Reform HIV Criminalization. And the activist to affirm: “This proves what activists have been hammering for years about HIV non-disclosure laws in Canada which are discriminatory and go against science”.

A plea that finally bears fruit

Until this decision, the Supreme Court considered that if there is a “realistic possibility of HIV transmission”, the non-disclosure of one’s HIV status invalidated the consent of the sexual partner. However, the interpretations of this legal criterion by the courts are not in line with current scientific realities on the transmission of HIV. Since 2017, the Canadian Coalition, supported by 174 organizations, has been advocating in Parliament to end “sexual assault” prosecutions in cases of HIV non-disclosure. At the Aids 2022 conference held in Montreal last July, the Coalition released its new Community Consensus Statement, which outlines detailed legislative recommendations to limit the criminalization of HIV in Canada. The objective is that legal proceedings are restricted to cases of intentional and actual transmission. The advocacy seems to be bearing fruit since the Parliament has announced a national consultation which should begin this fall. Will the court decision concerning Jennifer Murphy set a precedent? This was requested by the plaintiff’s lawyers, but the Court refused to make this decision, preferring that each case be judged in court on a case-by-case basis, State by State.

Chad Clarke has high hopes for this court decision. This Canadian spent three years in prison for HIV non-disclosure and his name was added to the sex offender registry. “When my case went to trial, my viral load was undetectable,” Clarke told the Canadian Daily News. “My children don’t know a world without HIV or AIDS and they don’t need to see people go to prison because they have a hidden pathology. No one enjoys going out and intentionally trying to transmit HIV. We deserve better and Canada can do better,” the activist concluded.

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