Intersectional Analysis at the Medico-Legal Borderland: HIV Testing Innovations and the Criminalization of HIV Non-Disclosure

Abstract

HIV testing technologies are evolving, and HIV-related criminal prosecutions are increasing. A new generation of HIV tests allows for much earlier detection of infection following the transmission event. HIV has an increased risk of transmission during the first eight weeks following infection due to greater infectivity in this very recent or acute phase (Brenner et al., 2007; Hayes and White, 2005; Hollingsworth, Anderson, and Fraser, 2008; Pao et al., 2005). As the Health Initiative for Men (HIM) puts it, HIV is “hottest at the start” (HIM, 2011). From a public health perspective, the importance of timely diagnosis during the acute phase is suggested from various data showing behavior change following an HIV-positive diagnosis (Marks et al., 2005). As such, the use of “early” HIV tests has important public health implications for the detection of HIV and the prevention of onward transmission. This has been the rationale for using these tests in pilot programs to help address the high rates of HIV among gay, bisexual, and other men who have sex with men (MSM)2 in British Columbia (BC), Canada, as well as in other settings globally (Gilbert et al., 2011). What has not been thoroughly examined, however, is the possible relationship between these innovations in laboratory technologies and related HIV testing initiatives and the increasing use of the criminal law to prosecute alleged cases of HIV non-disclosure in Canada.