October 5, 2012 — As a coalition of interveners, we are shocked and dismayed at today’s ruling by the Supreme Court of Canada that says that even the responsible use of a condom does not protect a person living with HIV from rampant prosecution. The Court’s judgments in R. v. Mabior and R. v. D.C., two cases relating to the criminalization of HIV non-disclosure, are a cold endorsement of AIDS-phobia. They will stand as an impediment to public health and prevention, and add even more fuel to stigma, misinformation and fear. And they place Canada once again in shameful opposition to standards set out by international human rights bodies, UNAIDS and the Global Commission on HIV and the Law.
In its decisions, the Court purports to uphold its own 1998 decision standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But this is an illusory limit to the criminal law. It blatantly ignores solid science and opens the door to convictions for non-disclosure even where the risk of transmission is negligible, approaching zero. Even in 1998, when there was less science quantifying the small risks of HIV transmission than there is today and less effective treatment for HIV, the Supreme Court had ruled that condom-use might sufficiently reduce the risk below significant” for the purpose of the criminal law. Yet now, 14 years later, despite significant advances in scientific knowledge, the Supreme Court decides condoms are not enough. In practice, today’s ruling means that people risk being criminally prosecuted even in cases where they exercised responsibility and took precautions, such as using condoms — which are 100% effective when used properly.
Adding to continued injustice, the Court’s actions will seriously undermine public health efforts. Criminalizing HIV non-disclosure in this way creates another disincentive to getting an HIV test and imposes a chill on what people can disclose to health professionals and support workers. People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads. Similarly, people not living with HIV need to be empowered to accept responsibility for their own health, and not proceed under a false sense of security that the criminal law will protect them from infection. In short, the Court’s actions will have deleterious effects not only on the lives and health of people living with HIV, but on all of us, through fostering a climate of fear and recrimination.
While we welcome the Court’s acquittal of D.C. — an acknowledgement of at least one miscarriage of justice — the onus must now fall to those protecting the health and defending the dignity of people living with HIV. We also call on Crown prosecutors to use their discretion and refuse to be complicit in injustice just because the Court gave them the power to do so. It is not in the public interest to prosecute people living with HIV where condoms have been used or where a person has a low or undetectable viral load. Prosecutions in such cases will only perpetuate misinformation, pander to prejudice and undermine efforts at HIV prevention and treatment.
Signed, the interveners:
Canadian HIV/AIDS Legal Network
HIV/AIDS Legal Clinic Ontario (HALCO)
Coalition des organismes communautaires québécois de lutte contre le sida (COCQSIDA)
Positive Living Society of British Columbia (Positive Living BC)
Canadian AIDS Society (CAS)
Toronto People with AIDS Foundation (PWA)
Black Coalition for AIDS Prevention (Black Cap)
Canadian Aboriginal AIDS Network (CAAN)
For more coverage . . .
HiV Justice Network: “Supreme Court makes bad law worse” here.
Xtra: “Top court decision 'huge setback'” here.
CBC: “Top court clarifies HIV disclosure ruling” here.
AIDS Action Now: Supreme Court decisions increase risk of violence, coercion & criminalization against women with HIV
October 5, 2012
Today the Supreme Court of Canada cemented Canada’s position as the world-leader in the criminalization of people living with HIV. We want to focus our first post on the negative impact of the decision on women living with HIV.
“If you ever leave me,” he says, “This is what I’ll do to you. I will take you to court. And I will tell them that you infected me…” Aboriginal Woman Living with HIV,Our Search for Safe Spaces: A Qualitative Study The Role of Sexual Violence Among Aboriginal Women Living with HIV. Vancouver, BC: Canadian Aboriginal AIDS Network, 2009.
HIV non-disclosure is a women’s issue and a feminist issue and an issue for all concerned with health and human rights. Violence against women is the same type of issue. Today, the next chapter was written in the cautionary tale of what happens when entrenched privilege and ideas about what is means to “protect women” set the agenda for marginalized, highly stigmatized people. The Supreme Court of Canada delivered two landmark rulings about HIV, and the criminal law. Central to these rulings was a discussion about protecting the rights of women from violence and coercion . The two cases are DC and Mabior; click on the links to go to the Court’s reasons for decision.
The question the Court looked at was: Under what circumstances does a person living with HIV have an obligation under the criminal law to disclose their HIV status to a sexual partner? The focus was on sexual intercourse, condoms, and low or undetectable HIV viral load. The Court decided that there is a new test in the land as of today: If the sex carries a realistic possibility of HIV transmission, then the HIV-positive person has a duty to disclose. The Court provided some guidance about the meaning of realistic possibility—if the person living with HIV has a low viral load anduses a condom, there is no realistic possibility of HIV transmission and they have no criminal law duty to disclose. But the vague language of realistic possibility opens the door for more prosecution and persecution of those living with HIV. The decisions have done nothing to address the realities facing people, and in particular women, living with the disease.
Sexual assault lies at the heart of the he criminal law applied to people living with HIV who allegedly do not disclose. Sex without consent is a crime—what exactly consent means in the context of HIV-positive people having sex is defined in relation to the risk of HIV transmission involved with the sex. HIV-positive people are most often charged with aggravated sexual assault—maximum penalty of life imprisonment, plus registration as a sex offender. You got it right, sexual assault law, the same law applied to violent, coerced, forced sex—to rape. With the same penalties. But with much higher rates of conviction for HIV non-disclosure than other prosecutions for sexual assault. And let’s be clear, people like DC and Mabior were convicted without ever transmitting HIV to their sex partners. Even putting someone at risk of HIV transmission is a crime, not just transmitting HIV.
Although sexual assault law was put in place to protect women–who have historically borne and continue to bear the overwhelming burden of sexual violence–today’s decision will likely lead to increased violence toward women who live with HIV. It will likely also prevent them from accessing HIV testing, treatment, services and supports.
When it is safe to do so, the vast majority of people living with HIV disclose their status to their partners, or take steps to effectively protect their partners from HIV transmission. However, imbalances in power relationships between men and women, including between men and transgendered women, make it more difficult for women living with HIV to consistently disclose their status or to negotiate safer sex practices with their male partners. Negotiating condom use is particularly difficult as it requires explicit consent and cooperation of men. Women are vulnerable to violence if they do not concede to the sexual desires of their male partners. Violence against women is also associated with disclosing HIV status. Men have used criminal allegations against women living with HIV as a weapon of abuse, which pushes them further away from justice, autonomy, and safety. The Supreme Court’s decision in Mabior has given abusive men a more powerful tool to coerce, control and to trap in abusive relationships women living with HIV.
One of the two cases the Supreme Court decided today involved criminal charges against a Quebec woman, known by her initials DC. DC and her son were beaten up by her common law spouse, as their live-in relationship was coming to an end in 2004. He was charged, sent to trial, convicted, and got off with a light sentence because …. Guess what he did? He called the cops and told them that DC had not disclosed her HIV status to him the first time they had sex, four years before he beat her up. And he said no condom was used. Guess who the cops believed? Guess who the trial court judge believed? You got it. DC was arrested in 2005, and convicted in 2008 after a trail. She has been fighting ever since to clear her name. Today the Supreme Court did that, by saying the trial judge was ham-fisted in the way he weighed and assessed the evidence about whether a condom was used. The Supreme Court tied itself in a knot to find a technical legal ground for acquitting DC. We are sure that this “victory” doesn’t start to make up for the nightmare DC and her family have suffered for close to 8 years now.
But that’s not all the Supreme Court did today. If the DC case was to start all over tomorrow, we are pretty sure that she would find herself in the very same situation as she did back in 2005. Having to defend herself against her abusive ex-spouse’s charges, hounded by gung-ho police, and persecuted by Crown prosecutors bent on enforcing, to the harshest degree, laws designed to protect women from male violence. Ironic doesn’t even begin to describe this situation. Unjust? Unconscionable? Outrageous miscarriage of justice?
Wait, it gets “better” for women under this decision, under the guise of protecting women’s equality, autonomy, and right to choose with whom they will have sex and the circumstances of that sex. By our reckoning, DC would be in a worse position under the new test set out by the Supreme Court. Under the old test, a number of Canadian courts of appeal had decided that people should not go to jail if their HIV viral load was low or undetectable, or if they used condoms. One or the other—not both. In fact, the Quebec court of appeal acquitted DC because her viral load was undetectable, meaning she posed no significant risk—the old test, established by the Supreme Court in the 1998 Cuerrier case—of transmitting to her partner. Now? Under the Supreme Court’s new realistic probability test DC would have to show that she had a low or undetectable viral load, and that the guy used a condom. And she would bear what the Supreme Court likes to call the “tactical burden” of putting evidence of condom use and her viral load before the court. So much for the presumption of innocence, and the Crown having to prove all elements of crime beyond a reasonable doubt in order to secure a conviction. So much for upholding the equality rights and dignity of women.