HIV Criminalization May Discourage Testing, Study Shows
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.
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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.
(RELATED: For & Against Interviews Regan Hoffman and Sean Strub on HIV Criminalization)
“Should we try to replicate this in the U.S.?,” asks Galletly. “Perhaps. Would we have the same results? I’m not sure.”
Galletly says that preliminary analysis from at least one U.S. study currently undergoing review “did not reveal a deterrent effect” on testing. According to Galletly, “Persons who were aware that their state had an HIV exposure law did not test less frequently ... than their counterparts who were unaware of their state’s law.”
Until now, references to the impact of criminal prosecutions and laws on HIV testing behavior have been anecdotal. Activists have referred to the “word on the street” as “take the test, risk arrest.” In interviews with The American Independent, one tester from Indiana said that he has seen people walk away from testing after being shown paperwork detailing the state’s “duty to warn” law.
In Indiana, test subjects are required to sign a consent document for the test that explicitly outlines the impact of a positive test result and Indiana law:
“I understand that if my HIV test result is confirmed positive, I will be counseled as to my duty to notify my past and present sex and/or needle sharing partners, including any spouse ... of my HIV positive status so they may arrange medical care. I will also be counseled as to my duty to notify all current and future sex and/or needle-sharing partners of my HIV positive status prior to engaging in behavior which may put them at risk per Indiana law. I understand my counseling will also include my inability to donate body fluids and tissues or sign a donor card or document. In addition, I will be informed of the benefits of early medical treatment.”
The testing agent from Indiana says that he has had clients get up and walk out of testing because of this section of the consent document (full document can be viewed here).
The Advocate partnered with The American Independent to bring you this story. The American Independent is a progressive nonprofit news organization committed to impact journalism.