HIV, Nursing Practice, and the Law: What Does HIV Criminalization Mean for Practicing Nurses

Abstract

Patrick O’Byrne, RN, PhD, is an Assistant Professor, University of Ottawa, Faculty of Health Sciences, School of Nursing, Ottawa, Ontario, Canada. In Canada, criminal prosecutions against people living with HIV have increased over the last few years (Cameron, 2009). Since a 1998 Supreme Court of Canada ruling, which established that people living with HIV must disclose their HIV status (referred to as serostatus) in certain cases, not only have there been 96 prosecutions, but there has also been an increase in the severity of the charges that have been laid; for example, while the initial 1998 Supreme Court ruling was an aggravated assault charge, prosecutions in recent years have increased to first-degree murder charges in one case (Canadian HIV/AIDS Legal Network [CHALN], 2010). Compounding this criminalization trend is the fact that the punitive measures associated with serostatus nondisclosure have also increased (e.g., in May 2010, the police in Ottawa, Canada, released the name, photograph, and serostatus of a gay man who they alleged did not disclose his serostatus to previous sexual partners; to view this police-based media release please see CTV, 2010). Because many nurses provide HIV care and can become involved in such cases, it is important that these practitioners reflect on HIV criminalization so as to either address what is occurring in their own jurisdictions or to proactively acknowledge that such a situation could materialize in their own regions. To facilitate a discussion on this topic, the Canadian context will be used to (a) review HIV criminal law, (b) outline potential effects of these laws, and (c) make recommendations for practice. These suggestions should be interpreted as what they are: points to incite debate among the world’s largest group of health professionals.