As more poz people have been charged with not disclosing their HIV status before having sex, there’s a greater need than ever to understand what Canada’s criminal law says about HIV disclosure.
The law says that you are required to disclose your status before engaging in sexual intercourse that represents a “significant risk” of HIV transmission, yet the concept of “significant risk” is very much open to interpretation.
Helping to sort out where we stand are the Canadian HIV/AIDS Legal Network and the Canadian AIDS Treatment Information Exchange (CATIE), in partnership with local AIDS service organizations. These groups are co-hosting a series of community forums across the country.
“Significant risk is an imprecise term and creates confusion for HIV-positive people and their sex partners,” says Cécile Kazatchkine, a policy analyst for the Legal Network. “For instance, while courts have clearly decided that vaginal or anal sex without a condom poses a significant risk of HIV transmission, it is not clear what other sexual activities can lead to criminal prosecutions and convictions.”
The forums are meant to present this information in an accessible way. Lawyer and community advocate Glenn Betteridge, on his second tour of duty, will moderate the forums and help translate the legal jargon. In 2009, the forums were presented in some of the largest Canadian cities, but in 2010 more regional centres were targeted.
“Information [is] wanted in smaller centres and this set of forums is in response to that need,” says Kazatchkine. “Our long-term hope is that these community forums together will support a larger community response for containing the use of criminal law in this area.”
In 1998, the Supreme Court of Canada ruled that you could be charged with aggravated assault for failing to disclose your HIV-positive status to a sex partner before having unprotected sex. Since then, an increasing number of HIV-positive people, including many gay men, have been charged and convicted of violent offences ranging from aggravated sexual assault to murder.
It is morally dubious to deliberately expose a sex partner to a potentially lethal virus, but a growing chorus of activists and researchers are saying HIV criminalization is fraught with injustice. They argue variously that criminalization hampers HIV-prevention efforts, fans the flames of HIV stigma, is rooted in misinformation and hysterical fear, puts the responsibility to protect sexual health entirely and unfairly on the shoulders of people living with HIV, turns gay men against each other and serves only to further victimize poz people.
The Legal Network has intervened in appellate court cases around Canada, ensuring that judges and juries are aware of the potential impacts of their decisions.
“Part of the solution lies with developing prosecutorial guidelines to avoid inappropriate and overly broad use of the criminal law,” says Kazatchkine. “Such guidelines would help police and Crown prosecutors handle HIV-related criminal complaints in a fair and non-discriminatory manner. They can help ensure cases are informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV.”
— with files from Matt Mills
Canadian HIV/AIDS Legal Network.
Canadian AIDS Treatment Information Exchange.