Criminalization of HIV status non-disclosure: what’s the issue?

by Jihyun Rosel Kim 

When people hear the question “should non-disclosure of HIV status be a criminal offence?” their usual response is, “well of course! We shouldn’t hurt people.” When all we see and hear about HIV in the news is so sensationalized to the point that we equate HIV with death and people with HIV with predators, that response is understandable.

The landmark case involving HIV status disclosure was R. v. Cuerrier.[1] In the case, the Supreme Court established that failure to disclose one’s HIV status could lead to a charge of aggravated sexual assault, which can lead to a maximum of a life sentence in prison. Justice Cory for the majority stated that non-disclosure of HIV status that would lead to a “significant risk of harm” would constitute an aggravated sexual assault. However, he never clarified what exactly would amount to “significant risk,” despite the differing levels of risk of transmission in diverse sexual activities. Justice Cory did, however, stated in an obiter that certain actions such as wearing a condom might be seen as mitigating the “significant risk.”

Since the Cuerrier decision in 1998, science has come a long way for HIV/AIDS. Moreover, research has shown that transmission risks for HIV are generally low, and differ significantly depending on the activity. Generally, the transmission rate of HIV during unprotected vaginal intercourse is 0.1% per act (with recent analysis suggesting a more accurate rate would be 0.08% per act).[2] If a person has an undetectable viral load (below 50 copies of HIV virus per mililitre of blood), the risk of infection is about 1 in 10,000 for unprotected sex acts.[3] Recent studies also suggest that antiretroviral therapy can reduce transmission up to 96% in heterosexual couples, where one partner is HIV-positive and the other is HIV-negative.[4]

Yet, Canadian courts have not kept up with scientific evidence. Due to the unclear guidelines regarding what exactly constitutes “significant risk,” courts have continued to send mixed messages regarding legal duty to disclose one’s status. Some courts have held that a person who did not disclose to a partner but wore a condom is not criminally liable. Other courts have held the opposite view by charging a defendant with sexual assault for non-disclosure without considering the kind of sexual activities.

The conflicting messages from the courts seriously undermine and threaten the rights of people living with HIV/AIDS (PLHs). How can PLHs truly prove that they disclosed to a partner – should they require witnesses or signatures? Should activities such as oral sex and mutual masturbation, which bears almost zero risk of transmission, bear the possibility of a criminal charge, when almost no activity in our lives are truly risk-free? What about the issue of partners, who can blackmail and even abuse their HIV-positive partners by threatening to charge them?

These are the questions that the new documentary film Positive Women: Exposing Injustice explores, which was produced by the Canadian HIV/AIDS Legal Network and premiered on June 14 at the Royal Ontario Museum.

The film tells the story of 4 women living with HIV across Canada, and how criminal law has affected their lives and limited their freedom. One of them is D.C. fromQuebec, who met her ex-partner in the summer 2000, and began a relationship with him shortly after. They had one incident of unprotected sexual intercourse before D.C. disclosed her status to him, when D.C.’s viral load was undetectable.  She and her partner were together for four years, during which the relationship became abusive and violent.
One of the most saddening moment of the film is when D.C. recounts the story of an abusive ex-partner, who threatened to tell everyone that she gave him AIDS (he was negative). When she finally ended the relationship, his abuse became more intense. One day, she found him hiding at her house, who came at her with the hot iron from her fireplace, yelling, “I will brand you.” At this point in her storytelling, her voice – usually so level, measured, like she was telling a story from the distant past – cracked audibly, and she broke down. In an attempt to shield his mother, D.C.’s son suffered from broken bones in his wrist.

After the assault, D.C. finally went to the police to report her abusive ex-partner, and he got charged. Then, his lawyer struck with a new argument. He said that she did not disclose her status and had sex with the partner one time with a condom, and brought on charges of sexual assault.

The trial judge charged D.C. with one account each of sexual assault and aggravated assault. He also dropped all charges of abuse against her partner. The unanimous Quebec Court of Appeal acquitted D.C. of her charges, stating that the risk of transmission was so small that it did not constitute a “significant risk.” The Crown appealed the decision. D.C.’s case was heard at the Supreme Court in February. A Supreme Court judgment is expected sometime later this year, where the Court will clarify its position on criminalization of HIV status disclosure.

During the Q&A (with director Alison Duke, one woman from the film, and the executive director of the Legal Network Richard Elliott), one man stood up to go to the microphone. He told the audience that he was diagnosed with HIV in the 80s. After his diagnosis, he experienced a near-death experience, which he described as the most frightening time of his life.  “Now, after watching this movie,” he said, “I feel so scared …” his voice cracked, just like D.C.’s in the film. “We need to show this film everywhere.”

Like many marginalized groups, people living with HIV/AIDS tend to be homogenized as irresponsible and/or predatory. The complex situation of their relationships, as well as the breakdown of the actual risk involved is often ignored. It’s time to dismantle the simplistic and moralistic perspective that continues to stigmatize people living in our community.

 

 


[1] [1998] 2 S.C.R. 371.

[2] M.C. Boily et al., “Heterosexual risk of HIV-1 infection per sexual act: systematic review and meta-analysis of  observational studies,” Lancet Infect Dis 2009; 9(2): 118–129.  A

[3] R. v. D.C., 2010 QCCA 2289 at para. 97. reports the uncontradicted testimony from medical expert that the risk of transmission could be  estimated at approximately 0.01%. This led the experts to characterize the risk of transmission as “very low, truly minimal” and “very, very low.”

[4] M.H. Cohen et al., “Prevention of HIV-1 Infection with Early Antiretroviral Therapy,” New England Journal of Medicine 2011; 365: 493–505.

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