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10 min

The re-criminalization of queer sex

How law and stigma conspire to use HIV to turn gay men against each other

Credit: Ken Bosem Illustration

In February, a 28-year-old Vancouver man was charged with aggravated sexual assault. The VPD issued a press release about him under the heading “Wanted Sex Offender.” It read in part: “It is alleged that he had unprotected sex with two Vancouver men denying that he was HIV-positive. Investigators are interested in speaking to anyone who can provide further information… Please contact Vancouver Police Sex Crimes Unit. The identity of all callers will be protected.”

Xtra West spoke with the man’s lawyer, Jason Gratl, who says his client is innocent, that he was the bottom in both cases, that he drove from Toronto to Vancouver to surrender himself when he found out the police were looking for him, and that both of the complainants continue to test HIV-negative many months after they fucked the accused.

“Ultimately I think I can say the complainant’s version of the facts will not go unchallenged,” says Gratl. “My problem is I can’t reveal information that tends to disclose the identity of the complainants because their identities are subject to a publication ban. It puts my client in an awkward position. His private information is splashed all over the papers, and it’s difficult for him to defend himself in any substantive way. It’s a little unfair. Ultimately, I’m not in a position to begin holding a trial in the media or to advocate on his behalf because I’m going to get hung up on the publication ban.”

“We lay charges based upon the evidence that we have,” says Geoff Gaul, director of legal services for crown counsel whose office filed the charges. “When we do our assessment of the evidence, we determine what the most appropriate charge is. Based on the information and evidence we have, we laid a charge of [two counts of] aggravated sexual assault. The case is before the court. I don’t want to jeopardize the strength of the prosecution, or infringe upon the rights of the accused. The proper forum for the public disclosure of the evidence is a courtroom and we’re going to respect that.”

Xtra West is also prevented from identifying the complainants in this case by the same publication ban. Regardless, this paper doesn’t out closeted queer people; we don’t publish the names of found-ins, johns or sex trade workers without their consent; and we don’t presume to disclose the HIV status of anyone without their direct, on-the-record, declaration and permission.

If every person stood up and publicly owned their sexual orientation and HIV status (especially those in the public eye), stigma and discrimination would likely dissolve because of a simple dearth of shame. But it’s ultimately a personal decision to release sexual and medical information; one that we say the media has neither qualification nor moral authority to make.

Although the accused in this case has been named, and his photograph published widely in Vancouver’s mainstream press, Xtra West won’t identify him without his full cooperation and consent.

Why write about this at all?

Publication bans in sexual assault cases were obviously intended to protect victims of violent and humiliating sexual attacks from further victimization and public scrutiny of their sex lives. Any humiliation the complainants may feel in this case is a product of the irrational stigma associated with HIV and the very rational fear of the discrimination that accompanies it. The accused in this case carries that burden alone, and now the VPD-imposed label of “sex offender,” while the complainants, who failed to roll condoms onto their cocks before they literally and figuratively screwed the accused, are protected as “victims.”

Not only do the complainants presumably accept no responsibility for their own choices, risks, and sexual health, but they are facilitating the persecution and prosecution of this young man living with HIV because, they say, above all other considerations he ought to have told them he was positive.

“Have they been living in a cave?” asks Phillip Banks, director of HIV prevention services at AIDS Vancouver. “The issue of gay men, who I’m assuming didn’t have guns to their heads when they decided to have sex without condoms, and who continue to be shocked and surprised when they find out they had sex with someone who maybe had a sexually transmitted infection, is ridiculous.”

“Everyone does ultimately have responsibility for their own sexual health, but that is not a legal position,” says Glenn Betterridge, senior policy analyst for the Canadian HIV/AIDS Legal Network. “The courts have clearly stated that in matters of HIV, the person who is HIV-positive has the added responsibly. They have to disclose their HIV status or take measures to reduce the risk or use condoms. Even the condom defence is not crystal clear in law. The court has said the careful use of a condom might reduce the risk of HIV infection to the extent that it would no longer be significant. That is a grey area because the Supreme Court said it ‘might reduce’- not ‘does reduce.'”

So how can this happen?

What is it about the law that allows the young man in this case to be tried for aggravated sexual assault; a crime that carries a maximum sentence of 25 years in prison, the same penalty meted out under the same section of the criminal code to someone who coldcocks and rapes another person at the point of a gun?

How is it that he can be pilloried in the court of public opinion as a rapist and Typhoid Mary while the men who actually did the fucking, who failed to wrap, who despite their own reckless choices aren’t living with HIV, are protected as victims?

In the 1998 Cuerrier case, in which a man had unprotected sex with his female partner without telling her he was HIV-positive, the Supreme Court of Canada ruled that pos people must disclose their status to their sex partners. By failing to do so, ruled the court, they’re tricking their partners into sex to which they would otherwise not have consented. The court also ruled that a pos person who fails to disclose and has unprotected sex can be charged with aggravated assault.

In the 2003 Williams case, a man had unprotected sex with his female partner and may have unknowingly passed the virus to her before he tested HIV-positive but continued to have unprotected sex with her after he learned he was positive. The court ruled that a person who fails to disclose to his sex partners that he has tested HIV-positive may be charged with attempted aggravated assault, even if his partner was already positive when they had unprotected sex.

Another possibility raised by the court, but not decided for sure, is that a person might be convicted of attempted aggravated assault for failing to disclose his HIV status, even if he hasn’t actually tested positive himself. All the prosecution would have to show is that a person acted “recklessly.”

Anyone who might have any “significant risk” of being HIV-positive, the court said, might be charged with attempted aggravated assault if they fail to disclose that there is a possibility he may be HIV-positive.

Banks estimates as much as 20 percent of gay men in Vancouver are HIV-positive. So, it would not seem to be much of a stretch for the court at some point in the future to come to the conclusion that any gay sex bears a significant risk.

“The exact point at which somebody is engaged in high-risk activities and has the obligation to disclose is not clear,” says Betterridge. “Does everyone who has ever had unprotected sex have to disclose that to their sexual partners before they have unprotected sex again, or with another partner? Or is the Supreme Court really talking about people who have engaged in barebacking parties, and shared intravenous needles? Probably the latter.”

What about blowjobs? What about rimming? What if someone somehow manages to pass the virus along despite his use of a condom? Transmission of HIV is at least possible in all these scenarios. Could anyone who has ever given or received a blowjob be open to a charge of aggravated sexual assault? What about any man who has ever had sex with another man?

“There could be any kind of dynamic at play,” says Banks. “Guys have told me stories of tops not seeing themselves at risk and therefore not being as concerned with the use of condoms as they would if they were bottoms, and how that leads men to decisions around condom use. It’s just so complicated.”

“If someone said there’s a two percent chance it’s going to rain today, would you bring your umbrella?” asks Betterridge. “Would you say there’s a significant chance it’s going to rain today? In effect, the Supreme Court has said that very low risk is a significant risk. A statistically low risk of a per-incident potential of transmission, the Supreme Court has said, is a significant risk of serious bodily harm.”

The Canadian AIDS Society HIV Transmission Guidelines for Assessing Risk is the community standard among AIDS organizations for the assessment of risk of HIV transmission. That publication rates activities–like different sex acts and intravenous drug use–on a five-point scale from “no risk” to “high risk.” Barebacking is rated high risk, and there is no differentiation between fucking or getting fucked. Blowjobs without condoms are rated low risk, again with no differentiation between sucking and getting sucked. Rimming is rated negligible risk, whether you’re eating or getting eaten. But the Supreme Court hasn’t established any criteria in law for where exactly the line between risky and not-so-risky lies.

“It’s open for debate and argument,” says Betterridge, “but the Supreme Court has clearly opened up the possibility that people who have not tested for HIV will be held to account if they engage in behaviour the Supreme Court has called reckless. At the end of the day, people couldn’t be found guilty if they weren’t HIV-positive, but you can’t avoid liability by deciding not to test and by not knowing.”

Queer people can’t walk around avoiding sex because we’re afraid of being re-branded as criminals. What are the possible solutions?

Betterridge says the public health system is better equipped to deal with the spread of HIV than is criminal law. Each province and territory has different public health laws, and those laws can be complicated and difficult to understand, but each provincial health officer has wide-ranging powers to direct treatments and counselling to HIV-positive people while better protecting patient confidentiality.

Health officers even have powers to detain or isolate those who are simply in denial about their status, or who can’t manage their HIV because of coincidental mental illness or addiction. That detention is reviewed on an ongoing basis, the key is never thrown away, and punishment for living with a chronic and often deadly disease is more likely avoided.

“The criminal law is a very blunt instrument,” says Betterridge. “It doesn’t have a graduated range of intervention in the same way that public health does in terms of counselling, bringing people into public health services, and providing people with mental health services they might need.

“The use of the criminal law may have certain negative effects,” he continues. “One is to increase the stigma and discrimination associated with HIV which may dissuade people from coming forward to get tested. If people know there is the potential to get criminally arrested, charged and perhaps found guilty and imprisoned because they know they’re HIV-positive, they might stay away from HIV testing.”

In the queer community, gay men know it’s that stigma that leads even out and proud pos people to whisper about their HIV when talking about it in public. Every time their status is revealed they must consider that jobs, homes, friendships, and personal safety might be at stake.

Queer sex, any sex, is simply not fundamentally incompatible with HIV. Many serodiscordant couples have long and fulfilling sex lives. It is possible and relatively easy to minimize the risk of transmission for virtually any sex act imaginable. Gay people have been fighting the epidemic for 25 years. AIDS affected gay men first in the Western World and we lost many thousands of our brothers to the disease. But for some reason, in spite of all that, there still lingers an HIV closet even within the queer community.

A pos person has to wonder every time he has sexual contact with anyone if he’ll be treated as a rapist under criminal law, if his health history and personal information will be fodder for gossip in the community, and if some disgruntled trick might someday decide to try to have him thrown in jail by accusing him of not insisting on the use of condoms. The law as it stands now actually functions to turn queer people against one another. It’s simply destructive to our community and certainly adds to the already heavy burdens of individual queer men living with HIV.

Pos people, people who might be pos, gay men, may be damned to prison if they don’t disclose their entire sexual histories and HIV test results, and damned to public ignominy if they do.

Betterridge lays part of the blame for this stigma on the media.

“Unfortunately the coverage in Canada of late has been for the most part incredibly sensationalistic,” he says. “Where the Globe and Mail will pay a reporter to be almost full-time in Africa covering the many aspects of the HIV/AIDS epidemic, there is very little coverage about the Canadian epidemic.

“We tend to see a big picture of someone’s face as an AIDS criminal splashed across the front page,” he continues. “The predominant portrayal of HIV/AIDS in Canada is people engaging in sex that places others at risk. We don’t see stories about the difficulties of living with HIV, the challenge of HIV, or the impact of the medications. The media has not been a partner in getting the message out that HIV is something that can impact anyone, that we all have to know it’s out there and know the facts.”

As examples, Betterridge points to the HIV prevalence rates in aboriginal communities that far outstrip the proportion of aboriginal people in the Canadian population. “That’s a story that has yet to be told to the Canadian public,” he says. “HIV was so closely associated with the gay community in the early years of the epidemic, but it really seems now to be only a series of community charity events. There’s no political discussion about the impact of HIV/AIDS on the gay community.

“Part of the way to address the stigma and discrimination is to talk openly and frankly about sex and about HIV,” he continues. “Oftentimes people talk in code, using words like “are you clean?” “do you play safe?”–all sorts of codes for “are you HIV-positive?”–which only perpetuates the stigma. People assume things and avoid full and frank discussion of sex with HIV.”

Time and again, in Africa and virtually every city in the world, when governments commit to prevention and education campaigns, and when people commit to open discussion about risks and realities, HIV transmission rates drop drastically and stigma and discrimination ebbs. But over the last few years, even as our understanding of the pathology of the epidemic and the virus itself grows, the media has moved to more sensational and simplistic coverage in an effort to attract the largest possible audience. Therapies have prolonged lives, leading people to believe HIV is not the serious problem it once was. Governments have changed priorities, and Canadians and queer people have failed to adjust their attitudes to keep pace with the changing times. The result is unnecessary and avoidable suffering.

If everyone simply took responsibility for their own sexual health and educated themselves; if everyone simply assumed that each of their sex partners were HIV-positive; indeed if everyone just assumed for the purposes of sex that they were themselves HIV-positive and conducted themselves accordingly, the stigma would likely be weakened, at least in the queer community, and transmission rates would undoubtedly drop.

“Teenagers know less about HIV today than they did 10 years ago,” says Betterridge. “There’s a perception that the existing medications can cure HIV. The media has not been a partner in getting the message out. So our wider public health efforts have been undermined.”