The Debate Around a Clear Definition of HIV Non-Disclosure in Canada Beyond the Criminal Scope
The article by Mykhalovskiy
discusses the problem of “significant risk”:
Exploring the public health impact of criminalizing HIV-non-disclosure (2011).
Specifically, Mykhalovskiy investigates the ways in which HIV non-disclosure, in the Canadian
context, is a public health issue that needs to be analyzed beyond the scope of criminalization. The author mentions the standpoint of various parties (i.e.
clinicians, public health officials, front-line counselors, PHAs, “at risk”
individuals, lawyers) vis-à-vis HIV non-disclosure (668). The chosen research
method is based on previous qualitative research (i.e. interviews, criminal
data, research, court records) that was conducted in Ontario, Canada. (669-670)
The Social Science and Medicine journal published the article for the
rationales. First, the importance to show the work service providers offer in
HIV prevention and treatment. Second, the need to raise awareness of the
various concerned parties of using a critical criminology approach to the HIV
“medico-legal borderland”, known as the absence of dialogue between criminology
and public health issues. Lastly, to recognize “how criminalization shapes HIV
prevention [and treatment]” (669)
As previously mentioned, HIV
non-disclosure in the Canadian context is based on “'a significant risk of
serious bodily harm’” (i.e. HIV transmission)” since R v Cuerrier. [1] (669) All parties (PHAs,
counselors) have interrogated themselves, what is a “significant risk”? What
are the parameters determining the occurrence of the latter, considering the R v
Cuerrier case failed to address the latter? Mykhalovskiy confirms “the
overall lack of clarity and overreach of significant risk have been central to
the concerns raised by legal advocates post-Cuerrier.” (669)
The article reveals three findings.
First, people living with HIV/AIDS (PHAs) experience a breach of client confidentiality. For instance,
counselors use information shared by him/her/them during consultations and
circulate it to criminal lawyers. To this effect, clients avoid open dialogue
in the face of legal worries (672-673). Second, PHAs face a lack of legal
liability when even he/she/them disclose their status to parties (i.e. sexual
partner(s), counselor, lawyer), their legal protection is not fully guaranteed
and protected “against potentially damaging legal entanglements” (673). For
instance, some sexual partner(s) take advantage of those situations in
reporting false accusations of HIV non-disclosure as a weapon of breakup,
manipulation, and threat. (673) A resulting effect to the latter is that both
workers (i.e. legal, public health) and clients (i.e. PHAs) experience fear. “You
don’t know what you can do and what you can’t do” (offender); “the things I can
say or can’t say unclear” (worker). (670-671) Third, there are blurred lines
between “established public health risk knowledge and safer sex messaging and
the parameters of the significant risk test.” (674)
The article offers an array of
solutions, such as expert knowledge, one’s responsibility for communicating
about the law. Mykhalovskiy also notes that lawyers frame the client as a witness
case instead of a private one (i.e. “he said/she said”) and counseling service
providers ensure all partners sign disclosure forms as archival records. I
would argue that the last solution is slightly problematic since a significant
portion of encounters is short-term. So, it is assumed that sexual
partners most likely will not attend a legal meeting with the client.
References
Image 1. HIVnAIDS. (2016). Method of transmission. Retrieved from https://hivnaids.wordpress.com/2016/02/23/how-to-contract/?fbclid=IwAR0gtJydA8sp46K0a6nXNPy0aBAWDB6uki5SwHyJyR8n0Z3qmBwHDYMl12A.
Mykhalovskiy, E. (2011). The problem of “significant
risk”: Exploring the public health impact of criminalizing HIV-non-disclosure.
Social Science & Medicine, 73 668-675.