When a man in Toronto was charged in June 2017 with aggravated sexual assault for failing to disclose his HIV status to two sexual partners, Toronto police posted his name and photo to their website. Police say the press release is about searching for other potential victims.
But advocates for people living with HIV say the choice to publicly out people charged with nondisclosure — and the continued use of criminal law against nondisclosure at all — is a disaster for public health and safety, further strains the relationship between queer people and police, and hurts people who are HIV-positive.
According to Toronto police, the man was diagnosed with HIV in 2011 and had sex with at least two men without disclosing his status. Police allege that both men were diagnosed with HIV as a result. The man’s name was widely reported in the press, but Xtra does not publish the names of people charged for HIV non-disclosure without their permission.
In addition to the criminal charge the man now faces, he was also slapped with a rare court order under Ontario’s Health Promotion and Protection Act, requiring him to wear condoms and to inform all sexual partners of his status.
Activists have long criticized the criminalization of HIV nondisclosure as discriminatory, harmful, and medically unsound. Under the most common interpretation of a 2012 Supreme Court case, R v Mabior, people diagnosed with HIV are required to either disclose their status or have both a low viral load and use a condom. A consensus of scientists, however, say that requirement is too strict, and exaggerates the risk of HIV transmission. The most recent evidence says people with an undetectably low viral load have virtually no chance of passing on HIV through sex.
Campaigners in Ontario have been trying to convince the government to back off prosecutions of HIV nondisclosure prosecutions — so far to no avail.
But the real punishment for people charged with nondisclosure can begin before they ever enter a courtroom, says Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.
“People should be tried in court, not the press,” he says. “The stigma that is inherently produced by these kinds of press releases can really not be undone. It reinforces the image of people living with HIV as criminal and as a threat.”
Elliot says press releases like the one in June create a climate of fear and suspicion that stigmatizes people living with HIV, misleads the public about the real risks, and can damage the accused’s reputation for life, even if he is never convicted. What’s worse, the heavy-handed use of criminal law can drive a wedge between health care providers and HIV patients, making it harder for them to trust their doctors and get help.
“You end up conscripting the public health system into being a handmaiden of an overly broad criminalization of people living with HIV,” Elliot says.
Toronto police say they are just doing their jobs, trying to protect victims and enforcing the law.
“The way the system works now is you have to balance. You have to balance public interest, you have to balance public safety, you have to balance the rights of the accused,” says Mark Pugash, director of corporate communications for the Toronto Police Service. “We go to enormous lengths to make sure that nothing we put out can damage someone’s right to a fair trial.”
“There’s always the possibility that somebody may be found not guilty. What is incumbent on law enforcement agencies is that we make sure the allegations are absolutely accurate.”
Pugash says press releases are valuable because they allow victims to come forward and to realize they are not alone. As for whether publicly naming people charged with nondisclosure can harm them for life, Pugash says that’s true of all crimes, from homicide to impaired driving to sexual assault.
Alexander McClelland, a PhD student at Concordia who studies the criminalization of HIV, disagrees. He says the punishment for those accused or convicted of HIV nondisclosure far outweighs the crime. While researching his thesis, he has interviewed people across Canada who were charged with nondisclosure.
Even if they’re never convicted, McClelland says, they often have their lives torn apart by the exposure — unable to see their own children, get a job or find housing.
Many people fail to disclose out of fear or shame, or because they are using condoms or have a low viral load, and then are slapped with a charge usually reserved for violent rapes with a weapon, McClelland says. Those who are convicted face abuse and violence in prison, followed by a lifetime of stigma as a sexual offender.
McClelland says every single one of his subjects was at one point suicidal.
“Anyone who’s arrested for this, I fear for,” he says. “This kind of situation where you release someone’s name and picture to the media causes fear and panic, and it’s not protecting anyone. It’s about policing people living with HIV, and surveilling people living with HIV.”
“We know that the best way to protect people is by sharing information and supporting people’s health,” he adds. “And putting people in prisons is not a way to support anyone’s health.”
McClelland and Elliott both say public health supports, such as counselling, medical treatment, and even binding public health orders, should be used — privately — before ever resorting to criminal law. Toronto Public Health officials agree, saying that publishing the names of those who do not disclose their HIV status can dissuade others from getting tested or talking to their doctors.
But Pugash says the police have different priorities than public health, and have to support victims of sexual assault first.
This offends Mikiki, a Toronto activist with the police-accountability group Queers Crash the Beat, who says HIV nondisclosure should not be lumped in with sexual assault.
“As an HIV-positive person who is a survivor of multiple sexual assaults, this is a complete slap in the face. It’s an insult,” says Mikiki, who is known by only their first name in the community.
The way the criminal justice system treats HIV, Mikiki says, puts all the responsibility on those with HIV, and none on the community or people who assume they are HIV-negative.
“The Criminal Code has become a way to exact revenge instead of allowing us to process our feelings of ambiguity and conflict about some of our decisions,” Mikiki says.
The behaviour of the police, Mikiki adds, smacks of the same anti-queer surveillance seen in the past, but now focused on people living with HIV: “They’re saying, ‘We apologize for stuff that we did, it’s all ancient history. Except when we do it now.’”
Wayne Cunningham, a lawyer who has represented the man who was charged, did not return Xtra’s calls for comment.