4 min

The necessity of prosecutorial guidelines

A strategy for fighting HIV criminalization in Ontario

Nobody should go to jail for giving a blowjob. I think most people in our communities would agree with that.

But poz people have been dealing with just that kind of threat. We are now seeing individuals facing charges such as “aggravated sexual assault” and perhaps even “attempted murder” for sex that entails almost no risk of passing on the virus.

The issue of criminalization and HIV disclosure has drawn a lot of heat in the community over the last few years. Some argue that the Criminal Code should never have a role in questions of HIV disclosure or transmission, that this is a matter for the Public Health Agency. Others are vociferous in asserting that being HIV-positive should not be a get-out-of-jail-free card. If someone is negligent or malicious and exposes another to a potentially lethal virus, they should be punished with the full force of law. Many argue that poz people should always disclose their status, no matter what the situation. Others reply that if there is little risk, our status is nobody’s business. Should we all get + tattoos? And what about negative people’s responsibility to protect themselves?

None of these arguments fit all the possible scenarios, and the debate has often been less than civil. The fallout from it, not to mention the divisions it has caused in our communities, have been far from productive.

I’ve been positive for the last 30 years, most of my adult life. I take care to protect anybody I have sex with. But, like most people living with this virus, I don’t like the thought of police and the courts evaluating what I do in bed. I worry about the stigma generated by lurid media reports of murder by HIV infection. I feel vulnerable knowing that anybody can accuse me of nondisclosure, and that on the flimsiest of evidence I could face serious criminal charges. Or worse: even before a trial, police might publish my name and picture in a fishing expedition for more accusations. I don’t think I’m alone. As long as people are being charged for activities that involve little or no risk, all of us living with HIV are under a cloud of suspicion.

What makes things worse still is that it’s impossible for us to know when we might be breaking the law. We’re supposed to disclose whenever there is “significant risk.” But “significant risk” isn’t defined. In some cases judges have ruled that wearing a condom isn’t enough. In others, apparently, it is. In the meantime, police and crown prosecutors, smelling easy convictions like sharks smelling blood, are upping the number and seriousness of charges.

There are serious consequences to all this, including its impact on HIV prevention. Fear encourages people to retreat into the closet and makes them less likely to disclose. Some even avoid talking to counsellors at AIDS service organizations because anything they say could be subpoenaed. Others avoid testing, thinking — wrongly — that if they don’t know they are poz, they can’t be charged. Not to mention the message that if you are negative, you don’t have to take any responsibility except to run to the cops after you have had unsafe sex. All of these behaviours potentially increase the risk of HIV infection.

So it’s a mess. The question is what do we do about it?

Some say we just have to “stand against” criminalization. But what does that mean? It reminds me of the Catholic Church “standing against” extra and premarital sex as a way to combat AIDS: nice in theory, but not very practical.

Like sex, the Criminal Code is not about to go away, no matter how much we might want it to. The Supreme Court of Canada decision requiring disclosure is not about to disappear. And the list of people charged continues to grow.

I would argue that this is not the time to talk about Criminal Code abstinence. It’s time to talk about harm reduction.

We’ve got to admit that there are some behaviours we cannot defend. When someone who has been thoroughly counselled lies and deceives and infects others, that person is going to be held accountable. They are going to end up in court.

Fortunately, such cases are very few and far between. The problem is the growing number that don’t fit that scenario at all.

How do we help ensure that cases that, by any reasonable standards, should never be in the courts don’t end up there? How do we ensure that decisions to prosecute are informed by an accurate understanding of scientific facts about HIV transmission, and that public health, and not the courts, is the first line in encouraging people to play safe? How do we ensure that when trials are unavoidable, they are fair, not coloured by ignorance and AIDSphobia?

One argument would be to ask Parliament to change the Criminal Code. But anybody who thinks the Harper government is likely to do that is truly dreaming in Technicolor.

Another strategy is a better defence in the courts. The Ontario Working Group on Criminal Law and HIV Exposure (CLHE), a group made up of PHAs and representatives from AIDS service organizations, is already doing that. We have pulled together an experienced team of defence attorneys and a roster of expert witnesses who can testify in such cases. The problem is that once someone has been charged, their life has already been turned upside down, even if ultimately they are found not guilty.

The Working Group has therefore developed a third strategy: a campaign to push for prosecutorial guidelines in Ontario. These are guidelines for crown attorneys to help ensure that complaints of HIV nondisclosure are investigated in a fair and nondiscriminatory manner. Guidelines are needed to ensure that any decision to prosecute such cases is informed by a complete and accurate understanding of the risks of HIV transmission. Ultimately, prosecutorial guidelines will also affect police behaviour. Police don’t waste resources charging people who Crown Counsel won’t prosecute.

Similar guidelines already exist in the UK. They haven’t stopped all charges, but they have reduced their number and seriousness. If we can reduce the number and seriousness of charges, we can reduce the hysteria and panic. And if we can do that, we will be in a better position to have the conversations we need to help everybody, poz and negative, to play safe.

A long list of medical and legal experts, social justice advocates and AIDS service organizations have already signed the call to the attorney general to begin community consultations on guidelines. We are now asking everyone concerned about the epidemic to consider signing, too.

Getting the attorney general to agree to develop guidelines in consultation with the community will be the first battle. Fighting to make sure such guidelines help limit prosecutions to those few cases where there is no reasonable alternative will be the second. Those battles require a united community.

To read the call to the attorney general and supporting materials, and to add your voice to this campaign, go to We need you.

Tim McCaskell is a member of AIDS Action Now!

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