Want to know a great way to increase the spread of HIV? Criminalize it.
In Canada, a person with HIV can be put in jail if they have unprotected sex with someone who didn’t ask about their HIV status. This means that HIV-negative people have the power to seek prosecution of HIV-positive people over sexual choices they made together, even if no HIV transmission occurs at all.
On first glance, this may sound fair. After all, isn’t the person with HIV being dishonest, hiding information that any HIV-negative person deserves to know so they can avoid hopping in the sack with them in the first place? If you judge by media coverage, or common public sentiment, or even the views of many gay men, you might agree. But things aren’t that simple.
The Supreme Court decided a decade ago that a person with HIV can be prosecuted if they engaged in sex that involved a “significant risk of serious bodily harm” — but the question of which activities meet that criteria and which don’t hasn’t been definitely settled.
If there are unanswered legal questions, the lack of community agreement is just as apparent. I think there’s a shared ethical consensus that it’s malicious to lie about HIV status to convince someone to have unprotected sex. Beyond that though, opinions are all over the map.
Some negative gay men assert their own responsibility to play safe and don’t discriminate based on known or perceived HIV status — while others express righteous indignation that anyone would engage in even the safest of activities without informing others if they have HIV.
Some men with HIV feel that if they disclose, any behaviour that both parties agree to is acceptable. Others think playing extra safe should be enough. And significant numbers of people with HIV actually support criminalization. Can we all come closer together as a community on these questions? And does criminal prosecution under the law offer us any assistance in that goal?
“These laws harm public health — and they don’t help anyone,” argues Edwin Bernard, a writer and researcher who studies HIV criminalization laws around the world. “The subtle but very real impact of these legal cases is that people with HIV don’t have the same sexual and reproductive rights as others.”
If you read the judgments in court cases of so-called “reckless” HIV-transmission risk — more and more of which are prosecuting gay men — they seem to send the message that people with HIV are completely responsible for protecting the sexual health of others, and that HIV-negative people don’t have any personal responsibility for the choices they make.
That’s not exactly the case, says Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, which has advocated for the legal rights of people with HIV since 1992. He points out the kinds of charges levelled in these cases — such as “criminal negligence causing bodily harm” — are specific to criminal law, which is only concerned with the innocence or guilt of the accused person. In fact, the responsibility of the other partner when it comes to safer sex isn’t even really considered.
So why could criminalizing the HIV-transmission risk actually increase the threat of HIV? Because it encourages the people at very greatest risk of passing HIV on — those who don’t even know they have it — to avoid testing, diagnosis and treatment.
“This creates yet another disincentive for people to get tested,” says Elliott, since knowing your HIV status makes you a target for criminalization — whether or not you consistently practice safer sex. That’s because there is very little to protect someone from an HIV-negative person lying about them — and it’s left to the judge to decide who is telling the truth.
Often the name of the person with HIV is dragged through the media in terms that are sensational at best, and inaccurate at worst — as was seen in the recent case of gay man Ryan Handy. The London Free Press headline blared “HIV positive man spread virus, jailed 8 months,” even though he didn’t do that at all. Consistently, the name of the accuser is withheld — potentially creating a safe space for malicious liars to attack responsible people with HIV with relative impunity.
“What’s happening in Canada is a witch hunt against HIV-positive people,” says Bernard. He points to the Quebec case earlier this month where a woman with HIV pressed charges against her boyfriend for domestic assault. The boyfriend countered that the woman had exposed him to HIV, even though the woman said she disclosed her HIV status early in the relationship and claimed the sex had been protected all along.
“This is a revenge case,” says Bernard. “Any time anybody has a grudge against an HIV-positive person, it is now possible to make a complaint and it will always end up being a ‘he-said/she-said’ or ‘he-said/he-said’ case in court.”
I’d like to expect that all judges and prosecutors are free of bias and well-informed about the real risks of HIV transmission — but that may be a foolish hope. Two months ago an American man with HIV was sentenced to 35 years in prison for spitting on someone. Late last year, an Ontario judge insisted that a witness with HIV and hepatitis C wear a protective mask in the courtroom despite zero risk to anyone in the room. And prosecutors have provided judges and juries with inaccurate information about the ability to medically determine which person infected which in HIV-transmission cases.
“So many of these cases are one person’s word against another — and juries are predisposed against HIV-positive people,” adds Bernard. “Condom use and disclosure must be proven. But unless people start using mobile phones to video the moment of disclosure and the condom being put on… it gets ridiculous.”
There is a common perception that people diagnosed with HIV represent a serious risk to others. But the far more grave threat lies elsewhere — with people who believe themselves to be HIV-negative and who, with little risk of legal prosecution, go around having unprotected sex with anyone they want, perhaps with little discussion of sexual risk and responsibility.
Placing a legal burden on people who know they are HIV-positive goes after the wrong people the wrong way. These women and men have taken the responsibility to get tested and are most likely to be on treatment, which itself significantly reduces their likelihood of infecting others. And when we punish them and throw them in jail, we put them in a situation where they have less access to medication, safer-sex supplies or clean needles — creating a dire epidemic of HIV and hep C in our prison system among people who will eventually be released in far worse shape.
Meanwhile, Bernard points out, studies in Canada and the US have concluded that people who don’t know their status — who may believe themselves to be negative — are the ones responsible for the majority of new HIV infections. “Nearly all new HIV infections can be attributed to HIV-positive persons unaware of their HIV status,” he wrote in an analysis of multiple research studies for the online resource Aidsmap.
This is because these people are more likely to practice unprotected sex and because the amount of HIV in someone’s system is dramatically elevated at the point of initial infection — making it easier to pass the virus on. (The ruling in one Canadian case has suggested these people may be legally liable as well, but this has not been definitively confirmed by the courts.)
All this means that practicing safer sex — rather than mandating that all people with HIV always disclose their status — is the best bet for everyone who wants to remain HIV negative. Disclosing HIV status doesn’t protect positive men and women from legal action, and it opens them up to discrimination, stigma and danger.
That can include the threat of physical violence. “Do I risk getting beaten up by disclosing? Or do I risk getting criminally prosecuted if I just stay quiet?” says Elliott of the situation faced by some people with HIV. “This is a really good example of how the criminal law is of very little use in a really complicated human interaction.”
“Disclosure is not the answer,” says Bernard. He points to the case of David Summers, who, according to a report in the Halifax (UK) Evening Courier, violently beat and brain-damaged a man who disclosed his HIV status after sex, “leaving his victim unconscious in his blood-spattered flat.” The report did not indicate that the sex was unprotected.
Bernard has reviewed legal cases of criminal HIV transmission from around the world. In his view, Canada’s record is one of the worst. Per capita, he says, “Canada is criminalizing more people with HIV than anywhere in the world.” The punishments in the US are the most severe, and the laws in Switzerland are most “draconian” — there, unlike in Canada, using a condom doesn’t protect someone from prosecution.
Bernard and Elliott both point to the response to criminalization in England and Wales as hopeful. The UK Crown Prosecution Service developed a guidance document to advise prosecutors on HIV criminalization cases, incorporating input from AIDS service organizations. But Elliott cautions that the comparatively decentralized nature of the Canadian system makes a similar response here unlikely.
Is there any way out of this mess? “The fewer of these laws there are, the better off we will be, in terms of the health of the public at large,” argues Bernard, suggesting that criminalization be replaced with a renewed focus on safer sex for everyone and testing, diagnosis and treatment for people who do acquire the virus. “HIV is everybody’s concern and sexual health is everybody’s responsibility.”