End Unjust HIV Criminalization in Canada: A Community Dialogue

By Heather Whiteside

Last Tuesday, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario (HALCO) hosted a community dialogue on the unjust criminalization of HIV in Canada. I attended, along with my colleagues, the Legal Network’s board members, and many community members.

Three panelists discussed what the movement to resist the over-criminalization of HIV has achieved thus far. They also outlined the work that still needs to be done, especially following Ontario’s provincial election (something I considered in my previous blog post). The unifying goal that brought everyone in the room together was putting an end to the misuse of the criminal law in addressing HIV non-disclosure issues.

Before I elaborate on what emerged from the discussion, it might be helpful to back up and provide some context on HIV criminalization in Canada.

Canada has one of the highest rates in the world of criminalizing people living with HIV. People living with HIV who do not disclose their status are often charged with aggravated sexual assault, the most serious sexual offence in the Criminal Code, even if they had no intent to cause harm and no transmission occurred. This is despite the overwhelming scientific evidence showing that sexual activity with a person living with HIV who is taking prescribed treatment poses a negligible risk of transmission.

There is scant evidence that the criminalization of HIV non-disclosure deters behaviour that can transmit HIV. Instead, it has negative consequences. For example, the fear of criminal prosecution may deter people from being tested and receiving adequate treatment. It also places the burden of preventing HIV transmission on those living with HIV and portrays them as potential criminals.

Thankfully, governments are beginning to recognize that HIV is, first and foremost, a medical and public health issue and that criminal prosecutions should only be used in cases of actual, intentional transmission of HIV.  After years of advocacy by community organizations, both the federal and Ontario governments have finally recognized the need to limit the over-criminalization of HIV in Canada. Both governments have decided to cease prosecutions against people with a suppressed viral load, since this is not consistent with the science of HIV transmission.

During the Community Dialogue, the panelists welcomed this shift as an important first step. It suggests that advocacy efforts and persistent discussions with the Ministry of the Attorney General have been effective. The next step is to ensure that the governments’ conclusions are reflected in clear prosecutorial guidelines at both federal and provincial levels, which would determine if and how a case arrives in court.

One of the themes that I found most striking during the discussion was the particular impacts of HIV non-disclosure laws on women. Criminalizing HIV non-disclosure is often perceived as a way to protect heterosexual women, since the vast majority of people charged under these laws are men who have sex with women and sexual assault laws are traditionally thought to protect women from gender-based violence. But if we dig a little deeper, evidence suggests that HIV criminalization actually puts women at risk.

Women are often the first in a family to be tested for HIV during pre-natal care, and the first person to test positive is often blamed for bringing the infection into the relationship. Women are more likely to be in coercive sexual relationships where they are prevented from making autonomous decisions about when and how sexual intercourse occurs, and many women often feel forced to choose between disclosure or risking abuse at the hands of their partners. Non-disclosure laws also mean that women are unlikely to report sexual assault or domestic violence if they are positive. Even more shocking is the fact that criminal charges are often brought against HIV positive women at the end of a romantic, consensual relationship by vindictive partners (as in the case of R. v. D.C., 2012 SCC 48). Ultimately, HIV criminalization does very little to actually protect women from violence and from transmission, and it does even less to empower positive women.

At the end of the Community Dialogue, three concrete suggestions were put forth for changing the law as it’s currently written and applied:

  1. Advocacy in the courtroom
  2. Advocating for prosecutorial guidelines about when the Crown will seek convictions
  3. Legislative reform of the provisions in the Criminal Code

Given the change occurring at the federal level, and the energy and dedication I felt from other community organizers in the room, I got the sense that these goals have a strong likelihood of being achieved.

On Being a Human Rights Intern:

By Daniel Powell

When a bright-eyed colleague of mine asked me why I had decided to spend a summer pent up in the Foundation’s off-highway suburban headquarters, I offered the only response that I could possibly muster to justify the cosmological happenings that had brought me there. My presence at the One Earth Future Foundation, like the presence of the other two McGill Law interns whose desks sandwiched my own, was the product of a well-ordained coincidence. As the saying goes, I never chose to end up at the Foundation; it chose me, as a matter of circumstance, and I willfully obliged. The circumstances were, to be fair, a product of my own making. I attended the one-and-a-half hour information session on the Faculty’s international human rights program and prepared an application, quickly modifying an existing resume and writing out answers to short essay questions. And when I had finished preparing the application, I submitted my application to the human rights program address over an email server. However, even as these actions were of my own doing, I never really believed that they would lead to anything. I certainly never expected that my application would be the cause of a professional experience as rewarding as the one that I experienced.

Of course, when I received an email inviting me to interview, I accepted with delight, remembering the seemingly inane words of advice that I once received from a human resources staffer to the effect that one can never secure a job without attending the interview, words which I have never managed to forget, precisely because their epistemological truth is cocooned as a stark and deceiving tautological absurdity.

The coincidence that had brought me to Broomfield for the summer was concretized in an interview before a four-person committee in a dimly lit seminar classroom. I remember entering the interview room and feeling immediately that I was under the thralls of a civilian inquisition. And although I appreciate that this imaginary portrait may now seem to be nothing more than a preposterous posture of literary excess, understand that the idea did occur to me. The imaginative invocation was not a completely absurd one either. At the time of my interrogation, I had just begun to study the origins of civil law and judicial institutions. The image of a panel of adjudicators sitting in a dark, cloistered law school seminar room had enough eidetic relation to the civilian investigation figured as a secretive Church affair that I could not resist the analogy. Indeed, if you will permit a hint of psychoanalysis, it seems then that the all too recent dream I once held of becoming an historian, now repressed by the necessity of assuming an identity as a law student, had resurfaced from the interpretative depths and taken its form in the real world.

At least I brought flowers. The day of my inquisition, I wore a collared floral shirt, a style choice which I then believed to reflect a comfortable balance between quirk and professionalism. The inquisitorial meeting was short, and though I left with a sense of nervous incapacity at my failure to communicate a clear vision of my interest, I found out later that this inquisitorial committee had nevertheless chosen to select me, in the same way that it had selected the rest of the twenty-something person cohort, to participate in the program. More than a mere offer to work at One Earth Future for the summer, the program director, Professor Ramanujam, offered me, as she offered all interns, an opportunity to participate as a human rights intern: a learning experience which included both a real-world clinical and academic component.

Back in Broomfield, while recounting with strategic brevity the series of coincidences that had brought me to intern there, I realized fairly quickly that something I had said was out of line. The moment that I associated human rights with the One Earth Future Foundation, a reaction registered on the face of this bright-eyed colleague. By the time I had finished sharing the story, its meaning had registered dominantly in her facial expression. The reaction was not the kind of reaction easily suppressed by an intentional grin of the jaw leftwards or rightwards, as if some jocular jiggle could eliminate true feelings from the facial repository. The reaction was crystal clear, quite distinct from the acutely acned skin that once occupied my adolescent face.

When I stopped speaking, she gave words to these emotions: “This is not a human rights organization.” These words were spoken clearly and declared with so much clarity that I was made to feel like some embarrassed and disoriented mouthpiece stuck stumbling over words which had become alien to him. She added that she had done human rights work previously and this organization, the one for which I was supposed to be a human rights intern, was not and could not actually be a human rights organization. She knew  this too because she had brought “relevant work experience” when she joined the Foundation, had even been recruited because of it, and that experience was of course definitive.

However, for all the certainty, it never seemed to dawn on her that maybe what she was now doing, though not conventional human rights work, had some important or at least remote connection with human rights. Instead, she held that because she was not directly working with the subjects of human rights, and the mandate of the organization was not directly related to human rights, the organization could not be engaged in human rights work.

This exchange might have been a dandy one, easily repressed by memory or rationalized into irrelevance, if it had been singular. But the view of my colleague was not singular. She was not the sole soul of colleague who shared this all too similar opinion about the work of the Foundation. It was shared by many, including my own supervisor, who suggested so nonchalantly that One Earth Future was not really a human rights organization that when he said it I nearly choked haphazardly on a mouthful of air.

For quite some time, I lingered doubts about my work as a human rights intern stationed in what I had been told firmly was not a human rights organization. My doubt manifested as a burning desire to make sense of my experience and to justify that the organization was somehow connected to human rights. However, even as I inclined towards this mindset, I was confused as to what human rights work consisted in. One Earth Future Foundation never proclaimed to be a human rights foundation. Its mandate was to eliminate the root causes of organized political violence, not to fight human rights battles through direct advocacy.

In retrospect, as I reflect on my experience, for all its extraordinary learning and professional development, it has occurred to me that perhaps the problem is that the category of human rights intern has been circumscribed too broadly or at least that the category of human rights has lost effectiveness for the type of work that I have an interest in pursuing and for which the Human Rights Internship Program provides. The meaning of human rights has become associated with so many ideas. The status of human rights has been debated just as their politics have been challenged. Increasingly, the substantive commitments of human rights have also been subject to uncertainty. Some believe human rights include a basket ranging from basic political and social rights to economic, civil and even environmental rights.

Debates over rights are really debates over justice. Rights are presumed and invoked because the world continues to be a place which fails to provide the necessities of its citizens and a world which absent governance structures and institutions incites violence between people rather than facilitates peace.

In The Idea of Justice, Amartya Sen recognizes that the discourse of human rights had come to appear weak and frail. For one, rights without substance are meaningless. Sen also recognized that even as an ideal the framework of rights was impoverished. Although he does not go so far as to attack the language of human rights, he does suggest that there is more value in thinking about capabilities rather than focusing on rights. Implicit in Sen’s attention to capabilities rather than human rights is a vision of justice: a political philosophical project to ground a commitment to lives of others. More than writing about human rights, Sen has sought to create a theoretical framework for how to achieve substantively just outcomes in a world which fails so often to provide for the most vulnerable. In such a world, he make clear, the negative freedom of rights can often mean little. If one does  not have the capability to exercise rights, then what good is it to banter on about human rights? Not good at all.

Reading Sen has been an important way for me to begin thinking about human rights within the context of justice and development. I have come to terms with and embraced my work over the summer as a human rights intern not because I have attempted to ram my experience into some pre-conceived idea of what human rights must be about. I have come to terms with my work because I have come to appreciate the opportunity that I learn about the importance of governance for creating justice, to witness an organization committed to building governance structures in their absence, and even to appreciate the challenges of governance instantiated as those encountered by the organizations which seek to devote their own human capital in the most efficient and effective way possible towards achieving the aims of justice.

In this way, my human rights internship, like some of the other human rights program internships, was not so much a mechanism for achieving an exotic human rights experience. It was also not an experience which I took to stand out on my resume, though it may nonetheless come with residual benefits. For me, the internship was an opportunity to realize that if the world is to achieve substantive justice, a desire which I hold true and axiomatic, it will only achieve such justice if it can develop the systems of governance and institutions required to render moot the very function of the exotic human rights advocate.

I am grateful for what I have learned, most importantly the institutional knowledge that I now carry with me. Tonight, as I sit in Montreal and reflect on the privilege of having had an education, let alone the privilege of having had an extraordinary legal education, I am reminded of the true value of a human rights program in our time and place. Achieving justice is and will continue to be, in all its fronts and manifestations, a perpetual struggle, one that has no conclusion. Justice must be achieved, but it also must be defended.

I long for the day when I have the privilege to share the knowledge that I have learned and put it to use so as to ensure that justice is made real and brought to life. For if indeed I can someday reflect on my experience as a human rights intern with the recognition of the human capital that has been vested in me and which I deem responsible to share, then I will have succeeded not merely in being a human rights intern in its most blasé formalism: a notation on a school resume. I will have succeeded as an agent and contributor of our shared world. And this agency will not assume the seemingly glamorous struggle of human rights. It will assume the placid face of an administrative struggle.  Because it is through institutional and governance reform that visions of a fair and just society came be made into a contemporary reality.

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