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Canada imposes strict measures for non-disclosure of HIV status

BY INGRID BROWN Associate editor — special assignment browni@jamaicaobserver.com

Friday, November 30, 2012    

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VANCOUVER, Canada — HIV-infected persons here in Canada may be forced to resort to such extreme measures as freezing used condoms or having their partners sign a document that they are aware of their status in order to prove their cases in court if they are later prosecuted for non-disclosure.

The measures have been put in place as the prosecution of HIV-infected persons becomes more intense with the recent Supreme Court ruling in two cases, which states that even the use of a condom does not protect a person living with HIV from rampant prosecution. Under the ruling, the court noted that people living with HIV have a legal duty to disclose their HIV-positive status to sexual partners before having sex that "poses a realistic possibility of HIV transmission".

Persons who fail to disclose their status in such circumstances could be convicted of aggravated sexual assault.

In Jamaica, discussion have started on the issue and the matter could be placed on the legal agenda in the future as more countries move to criminalise the non-disclosure of HIV/AIDS.

Micheal Vonn, policy director at the British Columbia Civil Liberties here, explained that the court decided that a realistic possibility of contraction is both not using a condom and not having an undetectable viral load at the time of sex. "People use to argue that if a latex condom was used you must acquit but now that is no longer the case," she said.

Vonn, who was speaking immediately following the viewing of a documentary outlining the struggles of four HIV women here yesterday, said with a sexual aggravation charge the penalty could be up to a life sentence.

Quizzed as to the sentences she has seen so far, Vonn said they range between two to 14 years and convicted persons are forever labelled as a sex offender.

In the riveting documentary 'Positive women: Exposing injustice' one of the women was recently acquitted on a matter of technicality after her case was taken to the Canadian Supreme Court

The woman said she was wrongly accused by her partner after she told him she wanted out of the relationship, adding that the charges of domestic violence which were initially proffered against him for beating her and her son were dropped after he filed a complaint against her that she did not tell him she was positive.

"Condom use is one person's testimony against another unless you are putting them in the freezer and labelling them," Vonn said, when asked how women could protect themselves against false accusation.

She added: "I tell women the more people you can have to give evidence that you disclosed your status to your partner [it is the better]; so for example, if you brought your partner to a clinic visit or if you disclose around others."

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