At this point, the literature about HIV transmission and Canadian criminal law that relates to serostatus non-disclosure will be examined using the impact fraction model. This will occur by filtering the extant literature into the model’s three sections: (1) significance of target population; (2) efficacy of intervention; and (3) coverage of intervention.
Significance of Target Population
In determining the significance of a target population, one must identify, first, the target group of a specific intervention and, second, the contribution of this target group to the overall (i.e. population level) impact and scope of a specific health issue of concern. In this context, the item of interest is criminal laws which focus on HIV serostatus non-disclosure and the outcome is HIV prevention. The goal in this context is therefore to determine what public health HIV prevention effect these criminal laws might induce based on the group that these laws target. Pursuant to Canadian legal precedents, the target group comprises PHAs who are cognizant/suspicious of their serostatus. Because it is serostatus disclosure and not HIV transmission that is the issue under Canadian law, a person can only be charged for and convicted of not disclosing his/her serostatus if he/she has been diagnosed with HIV (as per the Cuerrier ruling); alternatively, these laws apply when a person is aware that he/she might be HIV-positive, e.g. is named as a contact of HIV or has regular sexual contact with a person living with HIV (as per the Williams ruling). Accordingly, based on the Supreme Court’s R. v. Cuerrier and R. v. Williams rulings, the group in Canada that is targeted by criminal legal precedents which focus on serostatus non-disclosure comprises PHAs who are aware of their serostatus and individuals who are likely to be HIV-positive. Everyone else is exempt from these criminal liabilities.
Regarding the significance of the target population, the aforementioned data about HIV transmission in the Canadian context (summarized in Table
1) indicates that existing HIV disclosure laws are likely to induce small HIV prevention outcomes because they only apply to the group of PHAs who contribute 30% to 46% of the annual HIV incidence in Canada, which is somewhere between 552 (30% of 1,840) and 1,583 (46% of 3,440) of the 1,840–3,440 incident cases of HIV that occur by means of sexual contact each year (PHAC
2009). In other words, these laws focus on the large group of PHAs who are aware of their serostatus (74% of the prevalence, totalling 48,100 people; range, 39,960–56,240 individuals) and who have an HIV transmission rate that ranges between the conservative estimate of 1.15% and the liberal estimate of 3.29%. These laws have no effect, by comparison, on the significantly smaller group of PHAs who are unaware of their serostatus (26% of HIV prevalence, totalling 16,900 people; range, 14,040–19,760 individuals) and who have an estimated HIV transmission rate that varies between a low-end estimate of 5.88% (when 16,900 individuals are involved in 994 cases, or 54%, of HIV transmission) and a high-end estimate of 14.25% (when 16,900 individuals are involved in 2,408 cases, or 70%, of HIV transmission). To illustrate this point further, there are 38–93 incident cases of HIV per 1% of people unaware of their serostatus, in contrast to the 7–21 incident cases of HIV per 1% of people aware of their serostatus. Thus, despite the group that is targeted by Canadian serostatus non-disclosure criminal precedents constituting 74% of the prevalent HIV population (which equals 48,100 people; range, 39,960–56,240), the potential prevention impact of these laws is likely small.
This conclusion does not signify, however, that HIV prevention interventions which focus on groups that are involved in a small number of HIV transmission cases are neither effective nor important. Rather, the assertion here simply follows from the impact fraction model that greater population-level reductions in HIV transmission would like occur if HIV prevention efforts were more precisely focused on the smaller groups of people who are unaware of their positive serostatus and who are disproportionately involved in the majority of cases of HIV transmission. Such an approach would likely emphasize an increase in HIV testing among specific subpopulations who are disproportionately burdened by HIV, such as men who have sex with men, aboriginals, prison inmates and individuals of African/Caribbean ancestry. Such an approach might help decrease delayed HIV diagnosis and may identify individuals who are in the acute HIV infection period within the groups that (1) are most profoundly affected by HIV and (2) which most profoundly affect the overall population rates of HIV incidence and prevalence.
Efficacy of Intervention
Because the Canadian courts have ruled that PHAs must disclose their serostatus prior to engaging in sexual activities that pose a “significant risk” for HIV transmission, provided that such disclosure would affect consent, it is important to review the literature that examines the relationship between HIV disclosure, the criminal law and HIV transmission. Ultimately, the impact fraction model highlights the need to determine whether an intervention, (criminal legal precedents about serostatus disclosure in this case), actually produces any HIV prevention outcomes. That is, do these laws actually induce serostatus disclosure, and do these laws change the likelihood of HIV transmission? A yes for either/both of these questions would signal that these laws could help reduce overall rates of HIV transmission; a no, by comparison, would indicate that these laws likely have little, no, or even a negative impact on HIV prevention.
As with the previous category, there is again no currently available research which specifically examines whether HIV-related criminal laws actually promote, induce, or enhance serostatus disclosure. This is troublesome because an array of research demonstrates that many factors influence, and make it difficult to undertake, serostatus disclosure in real life, e.g. threats or experiences of violence, rejection, stigmatization, and discrimination by friends, family, peers, the general public, and health care professionals (Niccolai et al.
1999). Notwithstanding this paucity of evidence, there is one study wherein researchers examined the relationships between HIV criminal laws and people’s sexual practices (Burris et al.
2007). This research involved 490 individuals (162 of which were people knowingly living with HIV) and occurred in Chicago (
n = 248) and New York City (
n = 242). As its outcomes, the data showed no relationships between (1) laws which proscribe certain sexual practices or require serostatus disclosure and (2) people’s safer sex practices— this was the case regardless of the participant’s serostatus (Burris et al.
2007). One interesting finding, nevertheless, was that the Chicago-based participants reported higher rates of unprotected sexual contact after serostatus disclosure. (More research is needed to explore this finding.) As part of this study, Burris et al. (
2007) also examined whether HIV-related criminal laws affect social norms; they questioned whether these laws change the participants’ perceptions/beliefs about serostatus disclosure? The answer that was put forward by Burris et al. (
2007) was, again, that these laws have no effect. Most of the participants believed that serostatus disclosure was “morally right” and that it should occur regardless of legal obligations (Burris et al.
2007). Moral conviction about serostatus disclosure, unlike the criminal law, consistently predicted serostatus disclosure (Burris et al.
2007).
Another study by Horvath et al. (
2010) validated the findings of Burris et al. (
2007). In a study of 1,725 men who have sex with men over a 3.5-month period in multiple states (with and without HIV-related criminal laws), Horvath et al. (
2010) found that HIV-specific criminal laws or statutes which focus on transmission and/or serostatus disclosure have no effect on the occurrence of unprotected anal intercourse. Horvath et al. (
2010) thus concluded, in the same way as Burris et al. (
2007), that HIV-related laws “are not a deterrent to sexual risk taking among MSM [men who have sex with men]” (p. 1226). The benefit of this second study is that it replicated and validated Burris et al.'s findings (
2007), consequently mounting evidence about how inefficacious HIV-related criminal laws and statutes are as HIV prevention/public health initiatives.
A second component of determining whether criminal laws which require serostatus disclosure actually decrease the likelihood of HIV transmission is to establish the relationship between serostatus disclosure and HIV transmission. For serostatus disclosure to function as an HIV prevention strategy, it would have to induce safer sex and consequently decrease HIV transmission. Whilst the criminal law in Canada may focus on issues of consent, in this context, its relationship to and affect on HIV prevention is the point of interest and examination.
The literature on this topic (about serostatus disclosure and sexual practices, that is) produces mixed results, however. According to a recent review article, it is impossible to discern whether serostatus disclosure actually has any effect on safer sex practices and HIV transmission (Simoni and Pantalone
2004). Although some researchers found that serostatus disclosure corresponds with decreased HIV transmission, others found that it had absolutely no effect; other researchers, meanwhile, identified that the relationship between these two items depended on extenuating circumstances, signalling that serostatus disclosure does not consistently correspond with changes in sexual behaviour that limit HIV transmission (Simoni and Pantalone
2004). This means that whilst disclosure can affect sexual behaviour for some people in certain circumstances, many individuals who are HIV-negative knowingly engage in unprotected sex with people living with HIV. One item of importance when reviewing this material, however, is that some of these studies failed to differentiate between practices that are likely/unlikely to transmit HIV (e.g. oral vs. protected vaginal/anal vs. unprotected vaginal/anal sex). It could be, quite simply, that sexual contacts still occurred in many cases, but in ways that prevent HIV transmission.
To explain these studies, first, among their 255 multiethnic men living with HIV in Los Angeles, De Rosa and Marks (
1998) found that protected sexual contact occurred more commonly after serostatus disclosure. Similarly, among 609 men of various ethnicities living with HIV in Los Angeles, Marks et al. (
1994) found people living with HIV a slight increase in the frequency of unprotected insertive anal sex after serostatus disclosure than when serostatus disclosure did not occur, 18% and 23% respectively. Sturdevant et al. (
2001) produced corresponding results with a group of 153 sexually active adolescent girls living with HIV, wherein less condom use was reported when serostatus disclosure did not occur. In contrast, however, Crepaz and Marks (
2003) identified that there was no identifiable relationship between serostatus disclosure and safer sex in their research sample of 105 men who are living with HIV in Los Angeles. Marks and Crepaz (
2001) had previously found similar results: Among 206 men of various ethnicities living with HIV in Los Angeles, the occurrence of unsafe sex was identical regardless of whether serostatus disclosure occurred or not. Likewise, among 269 men and women who are living with HIV, Kalichman et al. (
2002) found that regardless of serostatus disclosure, protected sex occurred at the same frequency with both regular and non-regular partners. D’Angelo et al. (
2001) had previously produced the same results with 203 male and female adolescents living with HIV. Ultimately, these results highlight that serostatus disclosure should not be considered an efficacious HIV prevention strategy.
Coverage of Intervention
The third aspect of the impact fraction model focuses on coverage, which relates to the number of people within a specific group of interest (i.e. the target population) whom an intervention addresses and the proportion of these individuals for whom the intervention can be or is actualized in a way that promotes desired outcomes (e.g. health promotion or illness prevention). Coverage, as it is used in this context, therefore describes the extent of an intervention’s applicability, uptake, or use by the members of a specific community, not its uptake, use, or application within the general population. Herein, examinations of coverage query how many PHAs who know their serostatus are aware of their local HIV-related criminal laws which mandate serostatus disclosure.
To answer this question, a few sources of information can be drawn from. The first is an empirical study by Galletly et al. (
2009) which sought to determine the proportion of diagnosed PHAs who were aware of their jurisdictional serostatus disclosure laws in one unidentified US state. This study involved 384 PHAs, of which 63.9% were male, 54.3% black and 54.3% men who had sex with both men and women. The findings of this study revealed that most participants (76%) were aware of relevant laws, but that 19.3% of the study sample were nevertheless unaware whether serostatus disclosure laws existed, and 4.7% believed that no such laws existed in their state. Based on these findings, Galletly et al. (
2009) concluded that comprehension of these laws was “generally good” within their study sample and that this was likely due to diagnosed PHAs receiving information about these laws from a variety of sources: HIV support groups, AIDS service organizations, health care professionals, public health departments, general media, and so forth (p. 1265). As indicated by this study, coverage, if measured in relation to knowledge about HIV disclosure laws, appears to be high.
A qualitative study by Adam et al. (
2008), meanwhile, explored in greater detail the interpretation and meaning of serostatus disclosure laws for 34 men living with HIV in Canada (Toronto, Ontario, specifically). The results of this study identified “ambiguity and uncertainty” among the participants regarding the meaning and significance of Canadian serostatus disclosure laws in real-life (p. 159). Thus, whilst the participants appeared to be generally aware of the
R. v. Cuerrier precedent, they were neither in agreement about whether it was beneficial nor were they clearly able to surmount some of the “practical dilemmas” which are associated with this criminal law (p.160). This second study, when considered in hand with the findings of Galletly et al. (
2009), suggests that although survey-based data collection about serostatus disclosure laws reveal a high degree of awareness, in-depth qualitative-based discussions highlight many shortcomings in PHAs' actual understandings of these laws, e.g. what they mean in and as part of real life, day-to-day sexual interactions and person-to-person communication. Nevertheless, both studies did demonstrate a relatively high degree of coverage: Most participants were aware of local laws which mandate serostatus disclosure in particular situations.