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?

(more…)

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.

Responses to Renaude and Rose

Renaude Morin:

I was struck by the connection between story telling and justice in your post. It reminded me of one of my previous comments about the victims of the Huronia Regional Centre who wanted to tell their stories at trial. Their lawyers considered it a victory to reach a settlement with the Ontario government and pay each victim instead of giving them their day in court. Because of the harm to their dignity from the abuse in the government-run institution the victims saw the chance to tell their stories in open court as a way to heal and reclaim their agency. The nature of class action lawsuits privileges getting a huge settlement (which is how lawyers get paid) over going to trial and allowing victims to testify about their experiences.

Your post also made me think about another area of law in Canada that fails to let victims tell their stories publicly. Most of the time when an individual makes a complaint to their provincial human rights commission the matter is settled by mediation. There is no public record of the dispute and a condition of settlement may be a non-disclosure agreement. I know of an individual with a disability who made a human rights complaint when she was unable to vote in an election at her local polling place because it was inaccessible. In the end the barriers were removed but she was required to sign a non-disclosure agreement. For such a basic right – the right to vote – it astounds me that the settlement with the government should be private. One of the basic principles of our legal system is that it be public. In fact litigants must apply for a sealing order to avoid their court case being in the public record. Yet we have created a procedure for human rights complaints that is completely hidden from the public. We do not know, for example, how many disabled people are being disenfranchised, nor can we use these cases as precedent. These stories of discrimination remain untold.

 

Rose Adams:

I was excited to read in your post about the program for new indigenous law students that is taking place at the U of S this summer. While increasing education for judges and lawyers about Gladue sentencing is important, I am convinced that increasing the number of judges and lawyer who are indigenous is necessary. Law schools across Canada are making more efforts than before to ensure that their student populations reflect the actual Canadian population. My own experience with disability has really heightened my awareness about how difficult it is to fully understand the discrimination that others experience when you have immense privilege. Before my car accident I was aware of my privilege but it was not until I became a wheelchair user and began to experience the city of Montreal as a person with a disability that I fully understood privilege. As we (hopefully) move towards including indigenous legal perspectives and remedies in the Canadian legal system we absolutely must do so under the leadership of those who have embodied experience with what it means to be indigenous.

Close to Home

Sarah Grace RossBy Sarah Grace Ross

Unlike the majority of my fellow interns, my placement is not only within Canada, but in the very city where I was born: Toronto.

Despite having lived away from Toronto for a few years, it hasn’t taken long for me to become reacquainted with the city. From the neighbourhoods that my friends live in, to the best roti you can find, I know Toronto.

So with the start of my internship at the Canadian HIV/AIDS Legal Network, I was curious to find out what it would mean to work in human rights so close to home. My first realization during the internship was that while I know Toronto, I only know my Toronto, which is one version among millions. My internship was situated in a very different Toronto, one nested in the intersection of health and law, where I would be conducting legal research and policy advocacy for a segment of the population that, I came to realize, I didn’t know at all.

I had never met someone who was openly HIV+. Further, the only two public figures with HIV or AIDS that I could bring to mind were Freddy Mercury and Magic Johnson, a pretty short list. Fortunately, my first week at the Legal Network coincided with their annual symposium, where I met activists, mobilizers, lawyers, volunteers, and many individuals living with HIV. It became clear that while I would be working in a familiar city, everything about this job was going to feel new.

I was prepared to feel appalled at the human rights abuses of people living with HIV abroad, but as I began my first legal research projects, I realized there were many elements of living with HIV in Canada that were worse than I thought. After Russia and the United States, Canada is one of the most aggressive prosecutors of people living with HIV. Worse still, the criminal charge in non-disclosure cases is aggravated sexual assault, one of the most serious offences in the Criminal Code. Past interns have written thorough blogs about disclosure, which is when someone is legally required to disclose their HIV status prior to sexual activity. Advocates such as the Legal Network argue that the criminal justice response is heavy handed and does not reflect scientific advances regarding HIV transmission risks. Studies show that maintaining an undetectable viral load through HIV medication makes the risk of transmitting the virus effectively non-existent.

The publication’s cover photo is from the 1990 Montreal Sex Garage riots.

A few years ago, Canada’s criminal justice approach to disclosure sparked an underground, anonymous, grassroots publication titled How to Have Sex in a Police State. The publication surfaced online in 2015 and provides tips on how a person can access support from the health care system without triggering surveillance from the criminal justice system in the process. The fact that these two systems are interconnected is a huge problem; people should not have to choose between health care and privacy. Since violence, stigma, and discrimination are a reality for many people living with HIV, the publication encourages individuals to protect themselves from potential criminal charges, for example by having proof of their HIV status disclosure (such as screenshots of text messages) or even going so far as having a signed waiver for sexual partners.

There’s an often-used slogan that captures the connection between the health care and criminal justice systems: ‘take the test, risk arrest’. I heard the slogan mentioned a few times during the symposium last month, which made me suspect that the ‘police state’ described in the publication was still a reality for some people living with HIV today, even in large, arguably progressive cities like Toronto. ‘Take the test, risk arrest’ refers to the assumption that whoever is diagnosed with HIV first is presumed to have brought it into the relationship. This misattribution of infection is particularly stigmatizing for vulnerable women whose diagnosis may take place as a result of prenatal care or other routine visits to the doctor. The fear of partner retaliation upon discovering HIV or risking criminal charges related to disclosure can lead vulnerable women to seek prenatal care at very late stages in their pregnancy, to stay in an abusive relationship, or to deter testing.

I haven’t been surprised to see flagrant HIV-related human rights abuses in my international research projects. But the extent to which a segment of the Canadian population has to intentionally protect itself from the criminal justice system on a health matter gives me pause. It troubles me to imagine that in my own city, people living with HIV are, even if unintentionally, treated as a threat from which criminal laws are meant to protect. Are people living with HIV not worthy of protection too? Or an even simpler question: what does criminal law have to do with HIV anyway?  Even when a person’s viral load is undetectable due to medication and therefore untransmittable, their sexual activities are subject to surveillance. Safe sex should be about protecting the health of one’s self and partner, not about protecting one’s self from the long arm of the law.

HIV and Sex – Not a Risky Business

By Isabelle Rémillard

IMG_3251[1]Four girls in downtown Toronto, a little bit of gin, and a conversation about one-night stands. It didn’t take too much time before we argued the proper etiquette to adopt before engaging in some gymnastics under the sheets with a total stranger. Each one of us had a different idea of what was appropriate to ask, what we should expect from our partner… and how these opinions would be completely different if the other person was actually HIV-positive. One of us said, quite categorically, that she would never sleep with someone who was HIV-positive, even if he’d wear a condom. ‘’You do know that there’s no risk of transmission when a condom is used, right?’’, ‘’I don’t care’’.

This remark made me cringe. As an intern at the Canadian HIV/AIDS Legal Network, I learned all about the myths surrounding HIV transmission and how these misconceptions negatively affect the lives of people living with HIV. Yet, I couldn’t blame her for saying that; I’m not sure my opinion three months ago would have been much more different from hers. It is scary to realize that we were four educated girls, but we had such a poor understanding of how HIV may be transmitted. And I wonder whether the law is not in fact perpetuating (if not strengthening) this misinformation and therefore this stigma and discrimination around HIV.

Indeed, the Supreme Court of Canada’s rulings on HIV non-disclosure fail to reflect actual scientific knowledge on the matter. Under Canadian law, HIV-positive individuals may be charged and convicted of aggravated sexual assault if they do not disclose their status to their sexual partner unless they use a condom and have a low viral load. This is in contradiction with scientific and medical evidence which establishes that the possibility of transmission is negligible, or even nil, when only one of these requirements is satisfied. With such a legal interpretation, people living with HIV end up being labeled as criminals even when their actions pose no realistic possibility of transmission.

So I wonder what makes us think there’s a risk. Science doesn’t seem to have much influence on popular beliefs. Every time I mention the current state of HIV-related science, people tell me that it doesn’t matter, they wouldn’t want to take the chance – ‘’it’s too risky’’, they say. On the other hand, they do believe that our highest court is right in criminalizing such sexual behaviours. So are we keener to believe the law over science?

And what exactly is our responsibility as individuals to protect ourselves? In a generation where casual sex is more frequent, is it ever realistic to expect our sexual partner(s) to reveal such an intimate part of their life? Do we have to expose our whole life story every time we take off our clothes, especially to individuals we may perhaps never see again? Those in favour of non-disclosure prosecutions argue that individuals ought to be fully informed before taking a decision on whether to accept or refuse sex. But it’s hard for me to see how this rationale for HIV criminalization could stand. Considering that the scientific consensus is that the risk of transmission is negligible or nil, I don’t think a ‘’right to know’’ is defensible. How far do we want to go about the vow of telling ‘’the truth, the whole truth and nothing but the truth’’? Such a vow may exist in courts and Hollywood movies, but it has no place in our bedrooms.

To be clear, I am not arguing that people should change their mind about having sex with HIV-positive partners on the basis that their fears are unfounded – absolutely not! No one should have to justify why they would or wouldn’t want to sleep with someone. But what I’m asking is: should it really be a crime not to disclose your status? Given that there is no realistic possibility of transmission, the answer seems obvious to me. Where there is no intention of transmission and where the HIV-positive partner had a low viral load or a condom was used, this sexual behaviour should not constitute a crime. As a society, we should give more weight to scientific facts in the establishment of our policies and laws. The four girls living in downtown Toronto, as most Canadians, respect and trust the authority of our judicial institutions and their rulings can have significant impacts. Therefore, our courts have a responsibility to ensure we do not discriminate against some groups in our society, including people living with HIV.

How should an activist be?

By Jihyun Rosel Kim 

Before I began my internship, I was told it would involve mostly research. That statement is technically true – the majority of my time here was spent wrestling with Quicklaw, writing memos, or making information charts. However, one thing I’ve learned about the Legal Network is that it is truly committed to the issues identified in its mission statement, and will speak out in various ways.

1. Quiet action at the Court of Appeal

On June 15, staff of the Legal Network and other members of the community (including members of the Ontario Working Group on Criminal Law and HIV Exposure) participated in a “quiet action” campaign at the Ontario Court of Appeal. The Court was scheduled to hear an appeal on a case involving HIV status non-disclosure (R. v. M.), where both the Canadian HIV/AIDS Legal Network and HIV/AIDS Legal Clinic of Ontario (HALCO) were intervenors.

The "HIV Positive" action at the ON Court of Appeal

At trial, the judge ignored case law by not applying the significant risk test (i.e. a person living with HIV must disclose his/her status to the partner when the sexual activity poses a “significant risk of bodily harm”) set out in R. v. Cuerrier. Instead, he charged the defendant with aggravated sexual assault simply on the ground that the defendant did not disclose his status. Although the defendant stated he used a condom (which further diminishes the already-low risk of HIV transmission), the trial judge said it did not matter whether the sex was protected or not.

To demonstrate to the Court that people living with HIV and their allies were concerned about such overbroad use of criminal law, the Legal Network organized a t-shirt campaign—members showed up to the courtroom all wearing the same t-shirt with the logo “HIV Positive” at the front. There were about 18 people at court, and since the assigned courtroom for the hearing happened to be a smaller one, we effectively filled the gallery.

Unfortunately, the Court decided to stay the appeal, to wait for the Supreme Court decision on HIV non-disclosure (R. v. D.C.; R. v. Mabior) later this year. Even though it was a bit anti-climactic, one of the justices did take notice of the audience uniformly dressed in “HIV Positive” shirts to address us directly, and say that he realizes these issues are important and that he will make sure to rule on the issues carefully once the Supreme Court decision came down.

2. Action around cuts to refugee health care

At the end of April, Citizenship and Immigration Canada announced changes to the Interim Federal Health Program, which would effectively cut most supplemental health care benefits for refugee claimants, and all access to government-funded health care services for failed refugee claimants (who may reapply to stay in Canada under humanitarian and compassionate grounds). The only exception would be when the claimant’s health condition presented a “public health risk”—such as HIV. As of now, the public outcry seems to have made Kenney’s office backtrack a little bit from their initial cuts these days, but most of the cuts still remain.

On June 18—the national day of action to protect refugee health care—the Executive Director emailed everyone about the protest in Toronto, and encouraged everyone to attend the protest with him. So later on that day, I went to the Citizenship and Immigration Canada office on St. Clair Avenuewith a team of policy analysts and the ED of the Legal Network, and joined a few hundred people who were chanting “health care for refugees!”

Through participating in these actions, I’ve learned about the joys of being out on the streets with other people who believe in the same things as I do, which offers tremendous comfort in times where laws and policies seem to be going to a dark place. These experiences won’t appear on my CV as things I accomplished, but they nevertheless had a big impact on my outlook on activism and effective advocacy.

And for that intangible feeling of joy that came from connecting with other like-minded people who are committed to making things better, I am very grateful to the Legal Network.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.