On Feb. 8, the Supreme Court of Canada will hear two appeals about when a person living with HIV may be criminally prosecuted for not disclosing his or her status to a sexual partner. Such prosecutions continue to generate fear and stigmatization, directly affecting the lives of some of the most vulnerable in our communities and undermining broader efforts for HIV prevention and care.
When the court first addressed this issue in 1998, it ruled that HIV-positive status must be disclosed to sexual partners before engaging in activities that pose a “significant risk” of transmitting the virus, or else they could face charges of aggravated (sexual) assault. But fuelled by an exaggerated sense of HIV risk, people living with HIV have faced some of the most serious charges in our Criminal Code, even where there was no transmission or a significant risk of transmission.
Indeed, in at least one of the cases now under appeal, the prosecution wants to do away with this significant risk benchmark, opening the door for a radical and unwarranted expansion of the criminal law. This extremist position would disregard the greater scientific knowledge we now have about just how low the risks of HIV transmission are – including in cases where people use condoms or have a low level of the virus because of effective medications.
Undeniably, there will be cases that deserve censure. A person who maliciously transmits HIV should face legal consequences. But this is a rare case. Many real-life sexual encounters are much less clear-cut – sex is complex and so is disclosing you have HIV. The bluntness and severity of the criminal law make it all the more important to draw reasonable lines between criminal and non-criminal sexual behaviour.
Given this complexity and the stigma that still surrounds HIV – often evident in criminal prosecutions and the accompanying sensationalist media coverage – we need to be extra vigilant. We must protect against miscarriages of justice that are driven by misinformation, fear and prejudice, rather than by evidence about risks of harm. These concerns are well-founded, given that there has been little fairness or consistency in the law to date. Across Canada, prosecutors, juries and judges have reached wildly different conclusions about how to apply what is supposed to be the same law.
But you don’t cure uncertainty in the law by compounding its injustice. And a sweeping, unjust application of the law is precisely what the prosecution in these appeals is urging – criminalize every person with HIV who does not disclose, regardless of whether there was a risk of transmission.
Beyond its anti-scientific nature, this blanket criminalization of HIV non-disclosure also poses very real concerns from a public health perspective. If the threat of criminal charges encouraged people to disclose their status and discuss preventive measures, then prosecutions might arguably claim at least this benefit. But there is no evidence to suggest that criminalization is helpful in curbing new HIV infections.
In fact, the proliferation of criminal cases increases the stigma and misinformation surrounding HIV, creating another reason to avoid testing and making it even more difficult for people to discuss HIV openly – including with sexual partners, as well as with health workers and counsellors who have, in some cases, been conscripted to testify against their patients.
We also can’t ignore how the law gets applied. An analysis of the Canadian prosecutions to date found a disproportionately high number of black men charged. And the overuse of criminal law has serious implications for aboriginal people, on whom HIV has already taken a disproportionate toll. (A third of the women with HIV who have been prosecuted for allegedly not disclosing their status have been aboriginal.) Claims by prosecutors that criminal prosecutions for not disclosing HIV protect women are simplistic and, paradoxically, also disregard the very autonomy on the part of women that prosecutors claim to be defending.
The goal of the law should be to protect the health of Canadians. But a sweeping approach to criminalizing people living with HIV for not disclosing their status, that disregards whether there is a significant risk of harm to others, does not further this goal – indeed, it undermines it. If we really want to address and, ultimately, end the epidemic of HIV in Canada, then we must look for approaches beyond aggressive police action and rampant, discriminatory prosecution.
Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network.