Experts across Canada are calling on Parliament to amend the Criminal Code to reform the criminalization of HIV non-disclosure.
A February panel hosted by the Dalhousie Criminal Law Students Association in Halifax explored the ways the vague and broad interpretation and application of the law has failed those living with HIV.
It is important to note the advocacy from experts and activists alike is not about removing consequences for non-disclosure. Rather, it is about recognizing that sexual assault charges are not reflective of non-dislclosure crimes.
Panelists included former executive director of the HIV Legal Network Richard Elliott and Carleton University professor Alexander McClelland.
According to Elliott, at least 224 people in Canada have been prosecuted for alleged HIV non-disclosure to a sexual partner. He added that Canada used to be among the most prominent prosecutors of people living with HIV, and while the country may be experiencing a decline, that criminalization is only becoming more rampant in other countries.
Non-disclosure alone is not a crime
“There is no specific offense in our criminal code that deals with not disclosing or transmitting HIV or another sexually transmitted infection to a sexual partner or possibly in other circumstances,” Elliott explained.
Instead, prosecutors have to pursue their litigation through the interpretation of another offense that’s already in the criminal code.
Since the late 1990s, Elliott said, that offense has commonly been pursued as aggravated sexual assault — the most serious form of sexual assault in the criminal code.
But the majority of cases, he continued, are not dealing with actual transmission and are focused on “allegations of exposing a partner to a risk of acquiring HIV that is perceived by prosecutors and police and the courts to be too high in their view.”
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The Supreme Court ruled there are some instances where not disclosing a positive HIV status or another STI “could amount to fraud,” and “violates a sexual partner’s consent to sex.”
“The court was clear in that case that there was not a blanket obligation to disclose that was a central point in the case,” Elliott said. “But rather, they said that the duty to disclose will arise when there is a significant risk of serious bodily harm.”
Later court cases established that the use of a condom would prevent a second risk of transmission.
The idea was never for non-disclosure to be a criminal offense itself, Elliott said, with the need for a certain level of risk and potential harm involved to constitute a crime.
In 2014, the Supreme Court went on to clarify that the significant risk of serious bodily harm would be met “if there was a realistic possibility of transmitting HIV.” But as Elliott warned, that has not stopped the interpretation and application of the criminal law to be any less broad.
It does not take into account the science that has shown that when individuals with HIV have suppressed or undetectable viral loads, it’s virtually impossible for the virus to be contracted through sexual intercourse.
“If we really want to get to the root of this problem here, we need to actually change the underlying law,” Elliott concluded, calling on Parliament to take the lead on HIV criminalization reform.
The effects of HIV criminalization
An activist and criminologist, McClelland’s expertise focuses on how these legal decisions impact the lives of those criminalized for HIV non-disclosure. In particular, he pointed to stigma that deters people from testing for HIV and accessing counseling, leaving them to suffer in silence.
In 2019, McClelland testified as an expert witness to the House of Commons Standing Committee on Justice and Human Rights to present findings on the criminalization of HIV non-disclosure. Elliott was also among the 30 witnesses.
Through the course of his research, McClelland traveled across Canada, interviewing 18 people who were either threatened with criminal charges, who had charges brought against them, or had served their time and were now considered registered sex offenders.
“The criminal justice system produces a dichotomous narrative of either victim or perpetrator,” McClelland explained. “And perpetrators, or people who are framed as perpetrators, don’t usually get to tell their side of the story. They lose a sense of autonomy and subjectivity, and being able to speak for themselves.”
A common theme among those criminalized for HIV non-disclosure was confusion and a lack of understanding in how their cases “were framed as potentially a violent rapist who was trying to infect someone else with HIV.”
“Nothing could be further from the truth,” McClelland said, adding everyone he spoke with took measures to protect their partners from HIV transmission, whether by taking antiretroviral medications or using a condom.
One of his clients is now on the sex offender registry because she gave her partner a condom and they did not use it. Two others were sexually assaulted by their partners, but because they did not disclose their status, were convicted of aggravated sexual assault.
It is not just convictions of HIV non-disclosure that can upend someone’s life. McClelland pointed out the public nature of these charges often results in a loss of access to privacy, social and civil life, and are more at risk of stigma and violence.
“Quite a high portion of the women living with HIV who are criminalized are Indigenous women living with HIV, who have been subjected to ongoing sexual violence throughout their lives,” he said.
All 18 of them faced challenges in accessing legal aid, and all faced long periods of suicidal ideation.
Even after serving their sentences, McClelland says many still struggle with post-traumatic stress disorders, anxiety and depression — all on top of living with HIV.