Canada’s legal response to HIV transmission is a complicated web of sexual assault laws and misunderstood terminology that can serve against the positive woman.
It all stems from the 1998 Supreme Court of Canada decision that determined people living with HIV can be prosecuted for not disclosing their status to a sexual partner if the sexual act poses a “significant risk” of transmission. The supreme court judges used existing sexual assault laws to deal with HIV non-disclosure cases and that’s where a lot of the complications arise.
In 2009 a Canadian woman asked her sexual partner to use a condom. The prophylactic broke and she then disclosed her positive HIV status to the partner who did not contract the virus. As a result of this situation, the woman is now a registered sex offender. The judge who sentenced her to two years of house arrest and three years of probation described her as a “lonely woman who feared rejection” because of her HIV status. Her photos have been published in the media and she now has to live with the sex offender status for the rest of her life.
The punishment she received is a direct result of the 1998 supreme court decision.
At the time, treatment was not what it is today and the fear and stigma around HIV and AIDS was overpowering, so judges decided to fit non-disclosure into the sexual assault box. Whether transmission occurred or not — those who did not disclose could be charged and sentenced using the same laws for rapists who maim, disfigure, or endanger their victim’s life. Of course, there are Canadians who recognize the flaws in this legal decision.
“This isn’t justice – the law was designed for something else,” says Alison Symington, the co-director of research and advocacy at the Canadian HIV/AIDS Legal Network.
Symington describes the law as a gross overreaction that further creates a monster-like image for people living with HIV and AIDS. She and other experts in the advocacy field argue that the use of aggravated sexual assault law actually further marginalizes women and isn’t an effective form of prevention. The use of this law exaggerates the sense of risk of transmission and ignores the complexity related to disclosure.
Advocates argue that by making private medical and counselling records open to subpoena, women may be afraid of opening up to their health care providers and therefore they might not get the care and information they need.
Many of the 14 HIV-positive Canadian women who have been charged with non-disclosure are from marginalized groups which may have lead them to HIV infection in the first place. Aboriginal women, new immigrants, and sex workers are now further marginalized by their criminal record and in many cases, their sex offender status.
“People who are most high-risk are discouraged from testing,” says Symington, who co-produced the documentary Consent: HIV Non-Disclosure and Sexual Assault Law for the legal network.
She and other experts in the film argue that likening HIV non-disclosure with aggravated sexual assault reinforces the stigma around HIV and AIDS.
“It makes it more difficult for people to come forward,” Jean McDonald, the executive director of Maggie’s: Toronto Sex Workers Action Project, said during a panel after a screening of Consent. “It also creates a lot of assumptions about the victims.”
Advocates say there are many cases where the victims of non-disclosure were actually aware of their partner’s status.
“A man will say, ‘Oh, you’re leaving me? Well, I’m actually going to have you charged with non-disclosure.’ And that’s a really difficult thing to prove — that you disclosed your HIV status — so that’s quite terrifying for women. It’s actually keeping them in relationships and keeping them sometimes in situations of violence for fear that they’re going to end up getting prosecuted,” says Anne-Marie DiCenso from the Prisoners’ HIV/AIDS Support Action Network.
The laws can change and that’s what advocates are hoping for. Just over 30 years ago it wasn’t illegal for a man to rape his wife, as it was part of the woman’s marital obligations to be sexually available. Today, thanks to a better understanding of consent, that is no longer the case. Now that the scientific community has a better understanding of the HIV virus, transmission, and treatment, advocates are hoping to see a change in how the law deals with non-disclosure.
“I think a lot of [the problems] are based in misunderstanding and stigma,” says Symington. “At the time there was no treatment and fear was used as an incentive to disclose, but HIV has changed so much.”
Now it’s known that when an HIV-positive person’s viral load is low, the risk of transmission drops. For women with a low viral load (the level of the virus in her body) the risk of transmission to a male sexual partner is 1.3 in 10,000. When a condom is used it drops to 1 in 12,500 encounters.
The Canadian HIV/AIDS Legal Network has a list of recommendations that aim to reform the current system including training judges, lawyers, and prosecutors about HIV transmission and the realities of living with the virus.
“Good guidelines can shape the discretion of the prosecutors,” says Symington who hopes to see clear strategies for prosecutors in every Canadian province and territory. “One hope is that judges will learn from the scientific community.”
In 2012, the Global Commission on HIV and the Law released a report saying non-disclosure should be decriminalized worldwide. In counties like Denmark changes are starting to happen. In 2011 the country suspended a law that criminalizes infection and exposure as it was found to be outdated.
Image credit: scc-csc.ca, Flickr/Bordecia34, Flickr/Huw