World AIDS Day 2017 saw a dizzying array of announcements. Two in particular contained news of particular importance to people living with HIV. They were about the criminalization of HIV non-disclosure, a complicated topic that generated more commentary and some controversy. The purpose of this article is to explain what the news meant for people living with HIV. Part two will deal with what people are saying about it – and our opinion too.
Background: It’s important for people living with HIV to know when they are legally required to disclose that they are HIV-positive to their sexual partners. In Canada that has been a shifting landscape. It’s also one which has been hotly contested by community activists who have long fought that not disclosing one’s status be removed as reason for prosecution, but instead dealt with as a public health matter, not by the courts.
Some will argue that whatever is the legal requirement there is an ethical requirement to disclose. Whether or not you agree, it’s outside the scope of this discussion.
Bear in mind too that this is a discussion about the law in Canada. Go south of the border or elsewhere in the world and you will find a wide array of ways the law is applied, or not.
So what has been the law in Canada, pre-December 1? It’s been decided as non-disclosure cases come to trial, not by laws passed by government. Typically the charge is aggravated sexual assault. That’s because the courts deem that without disclosure of one’s HIV status, there is no consent to sex. Hence the charge is a serious one. In any event, some of these cases go as far as the Supreme Court.
The last time the Supreme Court weighed in was in 2012. In a nutshell it ruled that where there is a significant risk of HIV transmission – anal or vaginal sex for example - where one partner is HIV-positive, disclosure of one’s HIV-status is required. The exception is where the positive partner has a low viral load AND a condom is used. Note that both are required. Note too that transmission need not occur. Exposure is what the law focusses on. Is the law unjust, heavy handed, ineffective in preventing transmission? Does it dissuade some from getting tested? Yes to all of the above. But last week we saw some movement, some light at the end of the tunnel. Has the law changed? Not yet. But its application is likely to undergo changes immediately.
What the Feds said: Most notably, their report recommends that the criminal law should not apply to people who have a suppressed viral load. This is extremely significant. It dovetails with the same-day acknowledgement from the chief public health officer of Canada speaking for all provinces and territories that those who are fully virally suppressed for six months cannot transmit HIV to their sexual partners. Sound familiar? That’s what the folks from the U=U campaign have been saying so loudly.
But there is more. The report from the federal justice minister says that oral sex should not require disclosure unless there are other circumstances that cause it to be a risk.
Important too is the tone and its condemnation of the “over criminalization” of HIV. A joint statement including The Canadian HIV/AIDS Legal Network, long active with others in advocating against criminalization of HIV non-disclosure, described it thus. “The report explicitly recognizes that HIV is first and foremost a public health matter, that the use of the blunt instrument of the criminal law should be a matter of last resort, that the application of the criminal law to HIV non-disclosure is likely to disproportionately affect people Indigenous, gay and Black people.” That’s good to hear.
What Ontario said: This is where it gets complicated – and some will say controversial.
The week before December 1, community representatives met with those in the Attorney General’s office who work with crown prosecutors. The message they left with was that the crown would no longer prosecute those with a six-month old or longer undetectable viral load. And that’s what became official December 1. The Ontario Attorney-General and Minister of Health released a joint statement confirming that “HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible.” It also endorsed the scientific evidence contained in the federal report. And yes, there was confirmation that Ontario would no longer be prosecuting for non-disclosure those with a six months or older undetectable viral load.
To date no other provinces have followed suit.
What people are saying: Few doubt that, taken together. the two statements represent significant change. They have, though, produced a wide variety of responses, some welcoming, some less so. In part two we will explore the range of opinions from within the community.
In the meantime, here is some background reading:
The Federal statement: “Criminal Justice System’s Response to Non-Disclosure of HIV.”
The Ontario statement: “Ontario to curb prosecution of HIV non-disclosure cases”
Community statement: a response from the Canadian HIV/AIDS Legal Network and others “An important, modest advance on World AIDS Day”