Canada: Judge Slams Criminalization of HIV

Canada has filed criminal charges against more people with HIV per capita than any other country and is setting a poor example for other nations on how to deal rationally with HIV/AIDS, according to a top South African jurist. Canada has put more than 90 HIV-positive people on trial for having unprotected sex, even when no HIV transmission occurred, resulting in almost 70 convictions since the late 1980s, said Edwin Cameron, a judge on South Africa's Constitutional Court.

"Canada's wide approach to exposure offenses is sending out a terribly retrograde message to other countries, especially on my own continent, in Africa," Cameron said Friday, speaking to a weekend symposium on HIV and human rights hosted by the Canadian HIV/AIDS Legal Network. With HIV wrapped in so much stigma and many people afraid of testing, Canada should provide the world a rational, just model for coping with the disease, Cameron suggested.

The UN recommends criminal prosecution for HIV transmission only in cases where a person intended to spread the virus and infection actually took place. Many countries' laws incorporate similar guidance. However, in Canada an aggravated sexual assault conviction now before the Manitoba Court of Appeal involves a case in which none of the man's partners was infected.

AIDS activists must accept instances where criminal liability is justified, such as when someone with HIV actively deceives partners and infects them, Cameron said. But Canada should ask itself why HIV is subject to criminal prosecution, whereas swine flu and TB transmission are not, Cameron noted.

"I feel a sort of intensity about these issues because of the path I have walked," said Cameron, who is HIV-positive. "I have been close to death from AIDS. I've had my life given back to me. And I'm still the only person holding public office in the whole of Africa, the whole of Africa, who has spoken about living with HIV. So I am speaking from an epidemic of silence."

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