Criminalizing Non-disclosure

MONTREAL—On October 5, 2012, the Supreme Court delivered a ruling that significantly expanded the legal scope for criminalizing people living with AIDS and HIV infection in Canada.

“What this decision does is put vulnerable people with HIV at greater risk for prosecution, and it puts the rest of the population at greater risk for actually being infected with HIV,” said Tim McCaskell, long-time activist and founding member of AIDS Action Now! (AAN).

HIV non-disclosure first became a prosecutable crime in 1998, after the Supreme Court of Canada ruled in R. v. Cuerrier that a person is legally required to disclose their HIV status to a sexual partner in instances of “significant risk” of transmission. Unfortunately, the court failed to provide a precise definition of significant risk. As a result, several people have been convicted for engaging in sexual activity that actually poses negligible risk of transmission, while others in the same circumstances have been acquitted.

Canada is second only to the US in the number of charges laid for HIV non-disclosure: at least 140 people have been prosecuted, most often for aggravated sexual assault. The Cuerrier case concluded that not disclosing one’s HIV status to a sexual partner, when there exists a significant risk of transmission, is fraudulent and therefore negates consent for that sexual act, thus constituting sexual assault. “The charges that people get are totally disproportionate in terms of the impact of HIV in people’s lives today,” said Alex McClelland, another member of AAN. Aggravated sexual assault carries a maximum sentence of life in prison and 25 years on a sex offender registry.

Laws relating to HIV non-disclosure were not re-evaluated by the Canadian Supreme Court until this year, when it ruled on the two cases of R. v. D.C. and R. v. Mabior. D.C. is a Quebec woman whose partner of four years brought charges against her for not disclosing her HIV status before they had sex for the first time. Mabior is a Manitoba man who was charged with having sex with several women without disclosing his HIV status. None of the complainants in either case contracted HIV. The Supreme Court was asked to rule on the circumstances in which a person could be held criminally liable for not disclosing their HIV status to a sexual partner, with specific attention paid to the use of a condom or having a low viral load—two factors that are now widely recognized by scientists and prevention workers as greatly reducing the risk of transmission.

Cécile Kazatchkine, a policy analyst for the Canadian HIV/AIDS Legal Network, had hoped the new ruling would clarify the legal definition of “significant risk” by bringing the law in line with current medical research on HIV transmission and treatment. Instead, the ruling introduced the new idea of “realistic possibility of transmission,” which it broadly defined to include all HIV non-disclosure cases except those in which the accused both had a low viral load and used a condom. Kazatchkine expressed concern about the impact of this ruling, particularly for marginalized people living with HIV/AIDS (PHA’s) in Canada, including women and people who face barriers to accessing treatment.

McClelland shares this concern. “It makes this assumption that everyone can achieve a low viral load and are able to use a condom, and there are lots of people who aren’t,” he said. Among those who might face barriers are women who, for reasons of power dynamics in relationships, can’t always assert the use of a condom, and individuals without regular access to treatment and viral load testing, such as those with unstable housing, non-status immigrants, people in prisons, injection drug users and people living in remote communities.

Canada’s approach to HIV criminalization contradicts the 2008 statement issued by the UNAIDS Reference Group on HIV and Human Rights, which said that “in the overwhelming majority of cases, applying criminal law to HIV transmission or exposure does more harm than good. Rather than introducing laws criminalizing HIV exposure and transmission, countries need to change laws and policies that stand in the way of effective HIV prevention and treatment.”

Women are one of the fastest growing segments of the Canadian population to contract HIV. They have also been widely recognized as particularly vulnerable to HIV criminalization. Many women fear disclosing their HIV status to a partner could be met with violence or manipulation. This was true for D.C., one of the two defendants in the recent Supreme Court case. D.C. disclosed her positive HIV status to her partner only after they had had sex for the first time. He told her he was OK with it, and they stayed together for four years. Over time, however, he became abusive and, after she reported him to the police, he told them of her initial non-disclosure. He received an absolute discharge for his abuse while she was charged with aggravated sexual assault.

According to the Canadian Aboriginal AIDS Network, another intervening organization in the Supreme Court case, violence and HIV transmission are “deeply interrelated and often reinforcing” issues for Indigenous women, who experience the highest prevalence of HIV of all women living in Canada. This reality, coupled with lack of access to treatment or viral load testing in many remote communities, makes Indigenous women—who are already disproportionately represented in Canadian prisons—especially at risk for increased criminalization as a result of the Supreme Court ruling.

Critics of Canada’s approach to HIV non-disclosure argue that criminalization is harmful not only for PHA’s, but also for public health generally. Twenty-five per cent of Canadians living with HIV don’t yet know they’re positive, placing them among those most likely to transmit to others. “When people find out about HIV criminalization, studies show that they are much less likely to go and get tested in regards to their HIV status, so I feel that the [Supreme Court] decision has definitely hampered effective prevention efforts for organizations like ours that have HIV prevention as one of their primary mandates,” said Khaled Salam, Acting Executive Director at the AIDS Committee of Ottawa.

Not only are people more hesitant to get tested, but also prevention efforts are hindered by people’s fear of discussing their HIV status with healthcare professionals. “Increasingly, nurses and doctors’ records are being subpoenaed, so talking openly to your nurse or doctor about your health and your sex life and your status is discouraged because that can then be used against you in a court of law,” said McClelland. The same is often true of those accessing counseling services.

Dr. Mark Tyndall, Chief and Chair of the Infectious Diseases Division at the University of Ottawa, told The Dominion that HIV stigma is one of the biggest reasons that people don’t disclose their status to sexual partners, a situation that he feels criminalization only serves to exacerbate. “We want to put people in a situation where they feel safe disclosing, and under the threat of aggravated sexual assault or attempted murder, that’s hardly the environment where people will be likely to [do so].”

The fear of disclosing is often compounded by the way the media portray high-profile criminalization cases, such as that of an Ottawa man, Steven Boone, who was convicted in early November on three counts of aggravated sexual assault, attempted murder and administering a noxious substance. The media portrayed him as an “HIV vampire” who goes out and intentionally tries to spread HIV; activists and prevention workers are worried about the amount of AIDS-phobia that is fuelled by such sensationalized coverage.

Even prior to conviction, the impact on people charged with HIV non-disclosure is huge, as their names and photos get released to the public immediately. Boone talked to PositiveLite.com, Canada’s online HIV magazine, about the effect this had on his pre-trial time behind bars. “I have experienced homophobia, and discrimination in relation to my HIV status…I’ve also suffered from verbal death threats, physical assaults and sexual abuse,” he said. Those who are acquitted of their charges must nonetheless live with the lasting damage that criminalization can do to a person’s reputation.

For intervening organizations such as the Canadian HIV/AIDS Legal Network, the Supreme Court was “a last recourse to changing the laws” relating to HIV criminalization, said Kazatchkine. The priority for groups like hers now becomes education about the effect of the ruling for PHA’s and the broader public.

AAN is calling attention to the issue by showcasing a wide range of artistic responses to criminalization through a provocative poster art project called poster/VIRUS, launched this week at the Art Gallery of Ontario. Copies of the posters can also be found plastered around many Toronto streets.

McCaskell and many other activists are taking a harm-reductive approach to the ruling by pushing for prosecutorial guidelines to encourage Crown prosecutors to refrain from prosecuting when there is no real risk of HIV transmission, to consider the most up-to-date research on HIV as well as the social context around disclosure and to make sure that the law doesn’t pay disproportionate attention to HIV over other sexually transmitted diseases.

Ashley Fortier is a Montreal-based writer and copy editor.