The Canadian HIV/AIDS Legal Network has just published a report which sheds light on criminalization cases seen in Canada from 1989 to 2016.
It’s fascinating reading. Not only that it points to inequities in who is prosecuted and where. Most importantly though it provides a framework for those working on anti-criminalization measures to speak in an informed evidence-based way on the need to reform criminal justice approaches to HIV non-disclosure in this country.
I'll go over a few highlights
The report covers a total of 200 cases tracked in that period. Numbers of cases reaching the court system seem to have peaked in 2010 at 22 prosecutions per year. In the most recent year reporting there were five. The graph below shows the trend.
Geographically these cases have been distributed unevenly. Says the report, more than half of all cases in Canada have occurred in Ontario.
The report makes the case that “At least 10 cases after Mabior involved a defendant with a low or undetectable viral load (meaning the risks of transmission were close to zero). Of these 10 cases, nine occurred in Ontario.” Why is Mabior important? “In 2012, in R. v. Mabior and R. v. D.C., the Supreme court of Canada ruled that there is a legal duty to disclose one’s HIV-positive status before having sex that poses a “realistic possibility” of HIV transmission. The court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.”
The issue of ethnicity often comes up when Canada’s history of prosecuting people living with HIV for non-disclosure is concerned. Here is the breakdown in the report: the proportional distribution of people charged for HIV non-disclosure is as follows:
- 33% (60/184) are White
- 23% (43/184) are Black
- 6% (11/184) are Indigenous
- 2% (4/184) are Asian
- 2% (3/184) are Latin American
- The race/ethnicity of 63 people (34%) is unknown
Does the media reflect this distribution fairly? No, says the report “This data on the race/ethnicity of defendants charged in HIV non-disclosure cases since 1989 supports community concerns about the overrepresentation of racialized communities, particularly Black people living with HIV, in mainstream newspaper coverage of HIV-related criminal cases. Since 1989, 62% of all newspaper articles about HIV nondisclosure cases have focused on Black defendants.”
The report continues “Since the Mabior decision in 2012, almost half (48%) of all people charged for whom race is known are Black men. This is a significant increase from the period prior to 2012, in which 30% of people charged for whom race is known are Black men.... To date, out of at least 41 Black men charged in Canada, 59% were charged in Ontario.”
As regards gender, men account for 88% of all people charged to the end of 2016; the law in Canada is most often used in cases of HIV non-disclosure between heterosexual sex partners.
What about charges involving sex between men? It's a relatively new phenomenon, says the report. The document reports that from 1989 to 2016, 40 men faced criminal charges for HIV non-disclosure in the context of sex with male partners. They represent 25% of all men charged. There has been an increasing trend in such gay sex-related charges in the last few years. For example in the post-Mabior period, 38% of men were charged in cases that involved male partners,
What do we know about outcomes? Not all are known, it appears, but of those known, a significant majority of cases -70% - ended in a conviction on at least one charge. Meanwhile, 14% ended in acquittal, and in 13% of cases, charges were stayed or withdrawn.
Under Canadian law, people are prosecuted for not disclosing their status before sex, not for transmitting the virus. However we know that that there was no HIV transmission in 61% of cases in which a person was charged for not disclosing his or her HIV-positive status.
What about the impact of having an undetectable viral load? Has it made a difference in the likelihood of prosecution? “The Mabior decision has left people living with HIV open to prosecution in circumstances in which scientific evidence indicates that the risk of transmission is, at most, negligible. According to information available to the Canadian HIV/AIDS Legal Network, at least 10 cases after Mabior involved a defendant with a low or undetectable viral load (meaning the risks of transmission were close to zero).” Some experts now characterize that risk as zero.
What do we know about the sentences handed down after guilty verdicts? “People living with HIV who are criminally charged for not disclosing their HIV-positive status to sexual partners face harsh punishment. We know the sentence of 101 of the 111 cases that have ended in conviction for criminal offences related to HIV non-disclosure in Canada since 1989 In just 7% of cases, the defendant was given a conditional or suspended sentence and did not face prison time. However, the vast majority of people convicted in HIV non-disclosure cases receive prison sentences . . . In 72% of cases, a defendant was sentenced to over two years in prison.”
The report concludes it supports “growing consensus on the need to reform criminal justice approaches to HIV non-disclosure. It reinforces advocates’ calls to bring science to bear on the law and to limit the overly broad way that the criminal law is used to respond to HIV non-disclosure.”
Good work, Legal Network!