Mainstream media coverage of last Friday’s Supreme Court decision kicked off with a blizzard of confusion and misinformation. So if you think that there was a great ruling that is going to protect people from HIV and from fear and prejudice-driven prosecutions, sorry, you turned off the TV too soon.
In fact, the decision limits the defence available to those of us charged with not disclosing our status. The Manitoba Court of Appeals had previously ruled that it was nobody’s business if we were poz as long as our viral load was undetectable or if we used condoms. The Supreme Court is now demanding we do both at the same time.
Before, we were required to disclose if there was a “significant risk” of transmission. The new wording is we have to out ourselves when there is a “realistic possibility” of transmission.
If you have no idea what that means, welcome to the club.
The only clarification the Supremes offered was for straight people fucking in missionary position. If that involved both condoms and a low viral load, transmission wasn’t a “realistic possibility.” But for gay guys who don’t do much of that? Who knows? Oral sex? Who knows? Lesbians? Your guess is as good as mine.
So in terms of clarity, the Supreme Court bombed again. We can look forward to more queer prosecutions in order to clarify whether our various sexual behaviours fall within a “realistic possibility” of HIV transmission or not.
Despite the fact that the Quebec case before them was about an HIV-positive woman, the judges’ decision reflected little consideration of the issues poz women face. It’s much easier for a man who is positive to put on a condom than it is for a positive woman to make sure the man who is fucking her puts on a condom. But if she doesn’t, she could face life imprisonment for “raping” him and registration as a sex offender when she gets out — even if her viral load was undetectable and she was virtually uninfectious. We can look forward to more prosecutions of women under the new regime.
What about people who, for a variety of reasons, aren’t on meds or can’t get regular viral load tests — because of poverty, living in a remote area, immigration issues or because their doctors have told them they didn’t need to yet? How are they going to prove they have a low viral load? Before, as long as they had used a condom, they had a defence. Now it’s open season. So we can look forward to more prosecutions of the homeless, sex workers, minorities, aboriginals and those of us who don’t yet need meds.
The court had an opportunity to do three important things with this ruling. First was to reject the provinces’ argument that every poz person must disclose no matter what the risk of transmission. Thanks in large part to the intervention of a coalition of community groups, they didn’t go quite as far as the provinces wanted. So that piece could have been worse. But they also had an opportunity to send a clear message challenging fear and prejudice by listening to scientific evidence about how hard it is to transmit HIV. Instead, they fed those fears and are encouraging a whole new round of prosecutions. Finally, they could have listened to community research and expert opinion and taken into account how criminalization is fanning the flames of the epidemic. Instead, they dismissed this evidence and ignored the recent United Nations report that detailed the dangers of broad criminalization.
No poz person asked to go to the Supreme Court. This happened on the initiative of the governments of Manitoba and Quebec, trying to overturn previous acquittals. Our fight to limit the ongoing damage of criminalization once more falls back to the provincial level. Although the feds write the law and the Supreme Court interprets it, the provinces “administer” justice. For the last two years the Ontario Working Group on Criminal Law and HIV Exposure has been pushing the attorney general of Ontario to establish guidelines for prosecutors to try to limit prosecutions. Crown prosecutors are supposed to consider the “public interest” before dragging anyone through the courts. Can anyone seriously maintain that throwing more HIV-positive people in jail, for activities that don’t transmit HIV or pose any significant risk to anyone, is in the public interest?
Driving people with HIV underground from fear of criminalization only fans the flames of the epidemic. And that’s certainly in nobody’s interest.
Tim McCaskell is an AIDS activist and member of AIDS Action Now!