A growing chorus of activists, civil-society advocates and community members has presented evidence that criminal prosecution of HIV-positive people only intensifies the thirst for retribution and blame, and that the criminal justice system fails to reduce or prevent HIV transmission. But what’s the alternative to the criminalization of HIV?
A complete overhaul of how we understand and manage sexual risk as communities, individuals and organizations, that’s what.
Throw it out the window
We need to untangle the web of misinformation that some people use to justify the criminalization of HIV. The common perception goes like this: HIV is extremely dangerous, inevitably fatal and easy to catch. HIV-positive people have an obligation to tell sex partners about their HIV status prior to any sex. It’s impossible to consent to sex with an HIV-positive person unless they tell you they’re positive.
To this way of thinking, anyone who doesn’t disclose is dishonest, untrustworthy and probably addicted to barebacking. After all, if their grasp of moral responsibility were not so obviously lacking, they wouldn’t be poz in the first place. And someone like that wouldn’t think twice about passing HIV to someone else, on purpose. So you need to avoid these people like the plague and you need to slap them with criminal charges. Get them off the street.
We need to throw this thinking out the window.
Sex has never been risk-free for anyone, but safer sex is the absolute best way to avoid contracting sexually transmitted infections (STIs) like HIV. Yes, HIV is different from other STIs because there is so far no cure, but HIV is also far more difficult to transmit.
Barry Adam, director of prevention research at the Ontario HIV Treatment Network, says reliance on disclosure to reduce transmission rates is actually dangerous. He believes the fear and anxiety caused by the threat of criminal charges may even lead HIV-positive men to disclose inconsistently.
“Those who disclose inconsistently have higher rates of unprotected sex than those who either always disclose or never disclose,” said Adam at the symposium on HIV, Law and Human Rights in June. “People rely on others to disclose as a way to avoid having safer sex, rather than relying on this tried-and-true method of preventing HIV transmission.”
But the biggest difference between positive and negative folks is stigma and discrimination against poz people. It leads to a comparative disparity in social power between HIV-positive people and HIV-negative people.
“We still hear about people losing jobs, losing families, losing housing and occasionally experiencing physical violence when they disclose,” says Murray Jose, executive director of the Toronto People with AIDS Foundation.
So while sex with poz people without disclosure is not necessarily very risky, disclosure is always potentially dangerous for HIV-positive people. So expecting disclosure under all circumstances is just not reasonable. Changing that is part of the solution.
Media and sex ed
Another part of the solution: the media has to change the way it reports on HIV and disclosure cases. Witness Toronto Star columnist Rosie DiManno’s histrionic coverage of the Johnson Aziga case.
“He cut a wide swath with his penis,” wrote DiManno.
Bad media coverage “raises the spectre of gay men as diseased, predatory, and dangerous — out to kill, to take everyone with them in a debaucherous way,” argues Leanne Cusitar, a longtime sexual-health educator.
We need mainstream media to report on HIV in the most rational, responsible and clear-eyed way possible. Avoid sensational, fear-mongering stories that only whip up hysteria.
We need an informed society to fight against HIV and its criminalization but incomplete and inaccurate sex education leaves most Canadians with a poor understanding of STIs, including HIV. Furthermore, weak sex education leaves too many kids to grow up without fully understanding their own sexual agency. They learn about sexual relationships instead through trial and error.
Eight percent of teens who responded to this year’s Toronto Teen Survey hadn’t had any sex education at all, even though it’s a mandated part of the school curriculum.
“It can depend on where they live, what school they go to, and the commitment of the individual teacher,” says Jess Abraham, a sexual health promoter with Toronto Public Health (TPH).
And it’s not just teens. Adults need sex education too, education that is detailed and community-specific.
Changing public health
Canadian public-health departments are feeling a chill because of the criminalization of HIV. They are altering their best practices to minimize exposure to lawsuits. But they need a new approach and better funding if they are to better manage HIV risk and stop criminalization.
According to Martin Duchesne, a health promoter with TPH, most interactions between public health and HIV-positive people are supposed to be helpful, like connecting newly positive people with primary-care physicians. But in some ways TPH is even more demanding than is required by the Cuerrier decision. TPH’s sexual-health principles emphasize the importance of personal choice, but that doesn’t seem to extend to disclosure for HIV-positive people. TPH counsels every HIV-positive person to disclose their status to all sexual partners, even in the absence of risky behaviour.
The Calgary Model, developed by the Calgary Health Region, is popular among advocates. In it less punitive strategies are employed against HIV-positive people who insist on having unprotected sex without disclosure. Only if those strategies don’t work do health authorities resort to more drastic measures.
Do something about it
As arrests continue to rack up, we need to rekindle the queer rage and sense of injustice that fuelled historic gay protests like the response to the Toronto bathhouse raids, the Gay CourtWatch movement to defend gay men against sex charges and the original AIDS activist movement.
And we need a coalition of negative, positive and untested queers and allies to carry out this effort. Criminalization is an extreme manifestation of HIV stigma — and it shouldn’t be left to HIV-positive people to put themselves on the line to fight it.
Success will mean meeting men who have sex with men where they are: including online. The virtual sex arena is a prime battlefield against HIV stigma.
One service that plans to come out swinging against criminalization is Manhunt Cares (manhuntcares.com). Run by David S Novak, former national syphilis elimination coordinator for the US Centers for Disease Control and Prevention (CDC), the site links men who have sex with men with sexual health resources. Those resources will soon include information about criminalization and how to fight it.
Vancouver Coastal Health has used the site since 2006 to provide notification and counselling services to members whose partners test positive for sexually transmitted infections. Novak says only health authorities from jurisdictions with progressive practices against HIV are allowed access; those who advocate criminalization are shut out.
Change your own way of thinking
“I hereby declare that I deem every man I have any sexual contact with to have disclosed to me that he is HIV positive, regardless of what he says and regardless of whether or not the virus is now or has ever been in his body,” wrote Paul Leonard in his popular online blog.
“This growing trend of criminalization fosters negative changes in how people, viruses and sex acts are conceptualized,” says Leonard. “Instead of a person infecting another person, we get a criminal victimizing an innocent person. The virus moves from being an unpleasant biological entity to being a weapon. The police — and, I fear, the public — begin to see a biological hazard rather than a person. They start to talk and act as if the person who is HIV-positive is intrinsically dangerous.
“I am responsible for my own actions. There’s no meaningful difference in risk to me whether I have sex with an openly positive person, someone who knows he’s positive but doesn’t disclose, and a person who doesn’t know he’s positive or believes incorrectly that he isn’t,” he says.
Leonard’s assertion underscores the fundamental point that all people have responsibility for their own sexual choices. The fastest and most decisive way to end the criminalization of HIV is for HIV-negative people to stop making failure-to-disclose allegations to authorities.
If we want to create a world in which HIV-positive people can safely choose whether or not to disclose, and in which everyone is empowered to make healthy choices about sex, each of us has a role to play.
Dec 1 is World AIDS Day. Shawn Syms is a Toronto writer. He joined AIDS Action Now! at 18 and participated in the historic die-in at Toronto Pride in 1990.
Read the full version of this piece, published previously on Xtra.ca.