Canadian laws around HIV non-disclosure are, in a word, contentious. An HIV-positive person who fails to disclose their status prior to certain sexual activities can be charged with aggravated sexual assault; a category reserved for the most heinous of crimes, which normally involve a severe beating, stabbing or other life threatening injury.
While prosecutors, police and some of the public see value in using the criminal justice system as a tool to enforce disclosure, HIV activists and many healthcare practitioners see the trend toward criminalization as a backward step, further stigmatizing positive people, as well as de-incentivizing testing and treatment.
There’s much debate around what laws, if any, should be in place. But the initial rationale for implementing them has been largely forgotten. Created during a conference presented by the Canadian HIV/AIDS Legal Network in the wake of the 2012 Supreme Court decision on criminalizing non-disclosure, director Alison Duke’s film Consent examines not only the impact of the laws, but their origins.
“The court was looking at whether to keep the law as is, make it stronger, or to decriminalize HIV non-disclosure all together,” Duke says. “Feminists and HIV activists were fighting on different sides but I think some of them crossed over during the argument. Ultimately, what happened was a change in language that a lot of activists think makes prosecutions easier. After that, the network wanted to bring people together from both sides in a discussion, so that’s how the film got started.”
Many in the gay community might assume the push to criminalize is based on homophobia, but Consent tells a very different story. Bringing together scholars, legal experts and activists, it examines how Canada’s move toward criminalization actually has its roots in the feminist movement. Part of the push for women’s equality through the ’70s and ’80s, was about combating sexual assault by creating an affirmative definition of consent within the law. As this work continued against the backdrop of AIDS in the 1980s, a link was made between non-disclosure and assault — a man failing to disclose his status to a woman he’d had sex with constituted a failure to received informed consent, thereby turning an otherwise consensual sexual activity into an assault.
“It’s interesting how these laws that were developed to protect women over the decades, are now being used to criminalize the most oppressed parts of the population,” Duke says. “The gay community obviously has experience with this, as well as immigrant populations, and increasingly women, especially women of colour. It set out to achieve one thing, but its effect has been largely the reverse.”
HIV activists often cite the US war on drugs as a cautionary tale for Canada’s approach to dealing with HIV. Part of the Reagan Administration’s move to combat the serious societal issue of addiction, the policy has ultimately proven a failure. Three decades later addiction rates are higher than ever, incarceration (particularly among people of colour) has soared, and many parts of Latin America where drugs are produced or transported have been devastated by violence. While the criminal justice system can be an effective tool to deal with certain societal ills, activists insist that others like addiction, poverty and health issues are much better managed through social programs.
“I totally agree with that,” Duke says. “Criminalizing is absolutely the wrong place to put our energy. After making this film, it became so clear to me that we’re spending so much energy and so many resources criminalizing people, when we’re investing almost nothing in training and educating Canadians about creating safe spaces for people to disclose. Why are we bringing the state in to regulate what’s happening in the bedroom? Of course we need laws to protect people against physical and emotional violence. But we also can’t expect the legal system to adequately deal with something that’s so clearly a public health issue.”
Though considerable frustration still exists among HIV activists about the current state of things in Canada, a few bright spots can be found. Progress within the legal system has been slow (and often in the wrong direction). But conversations across legal and activist communities suggest the possibility of change happening on a more basic level.
“As a culture, we don’t even really know how to tell people what we want in bed so I think there’s some real thinking that needs to happen around sex so that people can talk about these things,” Duke says. “We’re talking about people revealing very private things about themselves without fearing rejection or violence or retribution. I don’t know if it’s sex education or public health promotion or something else. But it’s a conversation that has to continue happening.”