HIV transmission law in the age of treatment-as-prevention

Abstract

Evidence that treating people with HIV early in infection prevents transmission to sexual partners has reframed HIV prevention paradigms. The resulting emphasis on HIV testing as part of prevention strategies has rekindled the debate as to whether laws that criminalise HIV transmission are counterproductive to the human rights-based public health response. It also raises normative questions about what constitutes 'safe(r) sex' if a person with HIV has undetectable viral load, which has significant implications for sexual practice and health promotion. This paper discusses a recent high-profile Australian case where HIV transmission or exposure has been prosecuted, and considers how the interpretation of law in these instances impacts on HIV prevention paradigms. In addition, we consider the implications of an evolving medical understanding of HIV transmission, and particularly the ability to determine infectiousness through viral load tests, for laws that relate to HIV exposure (as distinct from transmission) offences. We conclude that defensible laws must relate to appreciable risk. Given the evidence that the transmissibility of HIV is reduced to negligible level where viral load is suppressed, this needs to be recognised in the framing, implementation and enforcement of the law. In addition, normative concepts of 'safe(r) sex' need to be expanded to include sex that is 'protected' by means of the positive person being virally suppressed. In jurisdictions where use of a condom has previously mitigated the duty of the person with HIV to disclose to a partner, this might logically also apply to sex that is 'protected' by undetectable viral load.

“We Need to Deploy Them Very Thoughtfully and Carefully”: Perceptions of Analytical Treatment Interruptions in HIV Cure Research in the United States—A Qualitative Inquiry

“…17 Policy concerns around laws criminalizing transmission can also be consequential, particularly in an era where legal revisions may be needed. 68 Finally, stakeholders provided considerations for the effective and ethical implementation of ATIs in HIV cure research in the United States. While the considerations are not exhaustive, and most are already being implemented in HIV cure protocols, 12 they may add to existing points of considerations and ethical safeguards around ATIs.…”

Awareness and understanding of HIV non-disclosure case law among people living with HIV who use illicit drugs in a Canadian setting

“…The negative association between ruling awareness and HIV VL suppression observed in this analysis is a concern, given the vast differences in HIV transmission risk messaging promoted by criminal justice and public health systems (Haire & Kaldor, 2015). Combination HIV prevention approaches are built on robust empirical evidence that the likelihood of onward viral transmission approaches zero with achievement of HIV VL suppression (Grulich et al, 2015; Cohen et al, 2015; Rodger et al, 2014).…”

Contraceptive Choice and Use of Dual Protection Among Women Living with HIV in Canada: Priorities for Integrated Care

“…With accumulating evidence that the risk of sexual HIV transmission is zero in the presence of ART‐related viral suppression in the HIV‐positive partner, a growing community of researchers, clinicians and community advocates agree that such viral suppression constitutes safer sex, offering women another option by which to eliminate HIV transmission risk. Indeed, evidence suggests that knowledge of the HIV prevention benefits of ART influences condom use practices among people with HIV .…”