Challenging The Criminalization Of People Living With Hiv

HIV+ disclosure is a complex, emotional, and moral issue to which there are no easy answers. Canadian law regarding disclosure of HIV+ status is used as a political force and form of social control. The misuse of Canadian criminal law to regulate our sexual lives is one of the greatest human rights challenges. Amelia Murphy-Beaudoin from Socialist Worker talked to Jordan Bond-Gorr from Aids Action Now! (AAN!) about the ways this law gives false notions of protecting society, and threatens freedom, self-determination, and human rights.

What is the law in Canada regarding disclosure of HIV+ status?

In 1998, in the Cuerrier case, the Supreme Court of Canada stated that a person living with HIV has a criminal law obligation to disclose HIV+ status before engaging in sex that exposes another person to a “significant risk” of serious bodily harm. The Court reasoned, without looking at any evidence of the health effects of HIV infection, that HIV infection amounted to “serious bodily harm.” Yet the Court did not define precisely what “significant risk” means. So, to this day, it is nearly impossible for people living with HIV to know the circumstances in which they have a criminal law duty to disclose their HIV+ status to a sexual partner.

Is this law being applied consistently and fairly?

No. Some people living with HIV have been charged and convicted for not disclosing and having oral sex, while others have not. We have seen the same type of unpredictable outcomes in cases involving sexual intercourse with condoms, and sexual intercourse without condoms. This uncertainty in the law has resulted in a great deal of unfairness for people living with HIV who have been charged, and fear and uncertainty amongst people living with HIV.

AIDS-phobia and ignorance on the part of police and Crown prosecutors are also a major concern, and exacerbate the problem of legal uncertainty. Many police, Crown prosecutors and judges have seriously over-estimated the risk of HIV being passed on during sex—oral sex, and sexual intercourse with or even without a condom. Contrary to uninformed popular opinion, HIV is not easy to sexually transmit. We are also very concerned that that institutional prejudices and biases in the criminal justice system and society at large—like institutionalized racism against Black men of African and Caribbean descent—have resulted in far too many charges.

How do you respond to the suggestion that criminalizing HIV non-disclosure is needed to protect women from dishonest, deceptive and unscrupulous men with HIV?

Criminalization does little to protect women from HIV infection, and nothing to protect them from violence, coercion or sexual objectification. The criminal law is a blunt, after-the-fact, tool. Women have told us that what they really need are HIV prevention programs that help them to overcome the structural, societal and personal dynamics that block them from enjoying full sexual, social and economic equality with men. For women living with HIV, criminalization can have serious negative effects, especially for women facing challenges due to their socio-economic situation, discrimination, insecure immigration status, or abusive or dependant relationships.

In some cases people with HIV have been convicted of serious criminal charges. Do these charges promote the public health goals of reducing HIV transmission?

We don’t think so. Criminal charges for HIV non-disclosure take place after the fact—and there is no evidence that the criminal law is leading more HIV-positive people to disclose their HIV status to partners. Criminal charges and prosecutions are not a prevention tool. Most people do not look to the criminal law for guidance with respect to their sexual behaviours, especially in the heat of the moment. Furthermore, it defies reason that a blunt tool like the criminal law can really overcome the complex personal, social and structural factors that figure into a person’s willingness and ability to disclose his or her HIV status. HIV is a disease of poverty and marginalization, of people who often do not have a lot of freedom or choices in many aspects of their lives. Criminalizing already marginalized groups of people only serves to put their health at greater risk.

Does the law have any impact on HIV prevention?

The starting point for us is the fact that the vast majority of people living with HIV go to great lengths to protect their sexual partners from the risk of getting HIV. So criminal charges for HIV non-disclosure are really about punishment or retribution, not prevention. We firmly believe that the criminal law may have the unintended negative effect of making HIV transmission more likely in Canada. The threat of criminal charges may dissuade some people with HIV (or at risk of HIV) from accessing services or honestly communicating with frontline workers about their risky behaviour and how to reduce those risks. Relying on the criminal law may also increase stigma and discrimination against people living with HIV, which can make disclosure and practicing safer sex even more difficult. All the sensational publicity around criminal cases does nothing to educate people about HIV. The criminal law also undermines the proven public health approach that all sexually active people must take responsibility for their sexual health—for educating themselves, practicing safer sex, and getting tested for sexually transmitted diseases.

What happens to people who are charged and convicted under this law?

Most people living with HIV who are prosecuted end up defending themselves against aggravated sexual assault charges. This is one of the most serious charges in Canadian law, and carries a maximum sentence of life imprisonment without parole for 25 years. This is the same charge used against people who commit violent rapes—in circumstances that bear no resemblance to not disclosing ones HIV status. And remember, HIV transmission does not have to take place—people can be charged for allegedly exposing another person to a significant risk of HIV transmission. We have also seen murder convictions for transmitting HIV, and attempted murder charges. Since 1989, over 140 people living with HIV have been charged.

The conviction rate in HIV non-disclosure prosecutions in Canada is really quite high—close to 80 per cent of cases where we know the outcome resulted in a conviction. Equally disturbing is the fact that about 50 per cent of these convictions have been the result of a person living with HIV pleading guilty to charges, without going to trial. Another really disturbing factor—but not surprising given that the law criminalizes HIV exposure—is that there was no HIV transmission in about 40 per cent of convictions.

The vast majority of people who have been convicted for not disclosing their HIV status—almost 90 per cent across Canada—have been sentenced to prison. People who are convicted must register as sex offenders under federal law, and under provincial laws where such laws exist.

How can the community join the fight against the overly-broad use of criminal law for HIV non-disclosure cases?

At AIDS Action Now! we militate under the slogan “Action=Life”. There are actions people can take to oppose criminalization of HIV. Follow AAN! on our website, Twitter and Facebook, stay informed about the issue, and join us in our marches and protests. If you can afford to, give us the resources, both human and financial, to help us in our struggle against criminalization—we are a volunteer group and have never accepted government money or money from pharmaceutical or other corporations. You can also support the Ontario campaign to get the Attorney General to pass rules to restrict the use of the criminal law. That campaign is part of the long-term advocacy strategy of a group of community organizations, community legal clinics, engaged university professors, and people living with HIV. Sign on to the campaign at http://ontarioaidsnetwork.on.ca/clhe/.