HIV Criminalization May Discourage Testing, Study Shows

After a series of high-profile criminal prosecutions of people who failed to disclose they are HIV-positive, some might hope not knowing their status protects them from jail time.

BY Todd Heywood

July 18 2012 5:00 AM ET

The AIDS Memorial Quilt is marking its 25th anniversary and panels are now on display at the National Cathedral in Washington, D.C.

LANSING — A team of researchers has published findings that, they say, indicate criminalization of HIV may discourage testing and hinder efforts to prevent the spread of the disease.

The study, from Canada, found that a significant minority of men who have sex with men said that a series high-profile criminal prosecutions related to HIV nondisclosure had impacted their willingness to get tested for the virus or to discuss risk factors with medical professionals. The researchers further reported that these individuals were more likely to engage in higher-risk sexual practices.

“Our results indicate that, although it is a minority of individuals (17.0% and 13.8%, respectively) who reported that nondisclosure criminal prosecutions either (a) affected their willingness to get tested for HIV, or (b) made them afraid to speak with nurses and physicians about their sexual practices, this small group reported higher rates of unprotected penetrative anal intercourse and internal ejaculation with, on average, a higher number of different sexual partners within the previous 2 months,” wrote the study’s authors.

The researchers found in addition to reporting “less STI/HIV testing,” this same group of respondents reported a “preference for anonymous HIV testing” — meaning that public health officials would be unable to help contact the sexual partners of someone who did test positive.

The researchers warn that the study, which was published online in May by the Journal of the Association of Nurses in AIDS Care, is based on a nonrandom sample and cannot be generalized to the population as a whole. Additionally, one expert told The American Independent that preliminary analysis of a separate, U.S.-based study did not show an impact of disclosure laws on testing behavior.

Still, the Canadian study is the first empirical evidence to support activists’ contention that HIV-related criminal laws might pose an obstacle to HIV testing. Since these prosecutions tend to target individuals who tested positive for HIV and then allegedly did not disclose that fact to their partners, critics have warned that they create a situation where not knowing one’s status protects one from arrest, prosecution, and jail time.

(RELATED: For & Against on Why Criminalization Reinforces Homophobia)

The study’s lead author, Patrick O'Byrne, says the findings are particularly important for HIV prevention. In an email exchange with The American Independent, O'Byrne, who is a professor in nursing at the University of Ottawa, said the research showed “a significant relationship between nondisclosure prosecutions, an avoidance of testing, and higher-risk sexual practices.”

He added that numerous studies have noted that those who are unaware that they are infected with HIV are more likely to infect others.

“The major implications of our findings relate to public health outcomes and HIV prevention,” O'Byrne says. Noting that an estimated 20% of Americans and 26% of Canadians infected with the virus don’t know it, O'Byrne explains: “With such a large number of individuals not knowing they are HIV-positive, there are clearly issues which undermine current HIV testing strategies. What is not wanted is an additional factor that may further deter HIV testing. Our findings suggest that nondisclosure prosecutions may be one such factor — and therefore an unwanted influence for public health HIV prevention efforts.”

But O'Byrne and others note the study has limits.

“The results of this study must be interpreted within its context: Ottawa, Canada within one year after a nondisclosure prosecution involving headline, front-page media attention,” says O'Byrne. “Indeed, the local prosecution released the [accused’s] full name, photograph, and sexual orientation. While it is impossible to tell, one must acknowledge that these factors could have influenced the results.”

The headline reporting O'Byrne references include the highly publicized charges brought against a gay man for not disclosing his HIV-positive status to sexual partners. Those charges included aggravated sexual assault and attempted murder. In at least some instances, he is alleged to have infected other men.

After the man was arrested, Ottawa police officials released his picture and warned residents that he had “an infectious medical condition.” That release was condemned by HIV advocates and public health officials. The man remains in jail while he awaits the outcome of a Canadian Supreme Court decision on HIV transmission in that country, reported the Waterloo Region Record in March.

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