In Canada, HIV-positive people who do not tell their sexual partner(s) that they are positive before having sex may face criminal charges ranging from sexual assault to common nuisance.
This use of law was established in the 1990s, and further complicated by a 2012 Supreme Court decision, which stated that people living with HIV must disclose before having sex that poses a “realistic possibility of HIV transmission.” As well, women who do not inform care providers about their HIV status when giving birth or who breastfeed after the birth, could potentially also face charges. This criminal charge has not been used, but the law has been a rationale for the removal of a child from the home.
What poses a “realistic possibility of HIV transmission?” In its 2012 decision, the Supreme Court said that for vaginal sex to have no “realistic possibility of HIV transmission” an HIV-positive person would need to both use a condom and have a low or undetectable viral load, if they did not disclose. A similar standard may apply to anal sex, although there is no clear legal precedent. There is no also no explicit decision about oral sex or how to interpret evolving information about transmission and undetectable viral load. In 2014, a group of Canadian HIV experts developed a consensus statement about the risks of transmission, but precedent setting legal decisions have not been made on this evidence.
HIV legal organizations like the Canadian HIV/AIDS Legal Network and HALCO (HIV and AIDS Legal Clinic Ontario) have produced resources to guide people living with HIV/AIDS about their disclosure obligations and the legal consequences for particular groups (gay men, Indigenous peoples, newcomers to Canada), as well as producing a resource kit for service providers.
The Impact of Disclosure Laws
Research provides an important window, to better understand how this legal environment impacts people with HIV, enabling the development of services and support to mitigate this impact, and to advocate for reform.
Well-being and Stigma
The largest study of the impact of HIV disclosure laws in Ontario was completed by Dr. Barry Adam and his colleagues in 2012 with support from OHTN. Multiple publications have since emerged from this work examining in more detail: the disclosures that HIV positive people make (Adam BD et al, 2014), their perspectives on the laws (Adam BD et al, 2016), and the impact of disclosure requirements on their every day lives (Adam BD et al, 2014). Although some people living with HIV felt that the high-profile prosecutions they encountered in the news were justified, many felt that the law left them vulnerable to disgruntled former partners, and reduced their ability to negotiate safer sex without disclosing. Even though over half of participants said they always disclosed their status, and nearly half said they did not have sex with HIV-negative or unknown status partners, many respondents reported that the law produces a “heightened sense of uncertainty, fear, or vulnerability.”
Race and Gender
Research also shows that the vulnerabilities created by disclosure laws are heightened by intersections between a person's HIV-positive status and their race and/or gender:
Criminal charges for non-disclosure are not applied equally; with people of colour more frequently targeted. Media coverage accentuates the problem, frequently demonizing black, immigrant men. A new report (Mykhalovskiy E et al, 2016) reviewing newspaper coverage of the 181 charges in Canada to-date shows that media disproportionately highlight cases involving Black men (15% of charges, 61% of coverage) and immigrant/refugee men (18% of charges, 62% of coverage). This biased coverage promotes racist stereotypes with images of black men and immigrants as dangerous, hypersexual predators.
A recent study conducted with women living with HIV (Kapiriri L et al, Dec 2016) highlights the ways that disclosure laws, as well as restrictions on breastfeeding, can violate privacy and increase stigma for HIV-positive women who are often part of close- knit ethnocultural communities. The paper explores how the law interacts with other cultural, social and economic pressures faced by the women. A key conclusion of this OHTN-funded work is that that the laws do not make the “best choice the easiest choice.”
Engagement in Care
Concerns around HIV disclosure may influence the screening and care for HIV and sexually transmitted infections (STI) that people pursue, as well as their relationships with care providers:
An Ottawa study (O’Bryne et al, 2013) involving over 700 gay and bisexual men explored how the local high-profile prosecution of a gay man influenced testing. There was no direct impact on HIV testing, as concerned men used anonymous testing. However, those who said that the disclosure laws affected their testing decisions were less likely to have been screened for sexually transmitted infections (STIs), a type of testing not done with anonymous tests. Untreated STIs compromise health and increase HIV transmission risk. HIV-positive men were the most likely to say that HIV disclosure laws affected their STI screening choices. They also reported that they were less candid about their behaviour with health care providers.
A systematic review (Patterson, Milloy et al, 2015) compiled multiple studies suggesting that Canadian law impairs dialogue between caregivers and patients, although a longstanding relationship with a provider mitigates this barrier. Criminalization may also reduce adherence to antiretroviral drugs, according to a cross-sectional survey of over 2000 people in five countries (including Canada).
Similarly, a just released study of Ontario ASO support workers (Savage S et al, 2016) led by OHTN Applied Research Chair, David Brennan, noted the barriers that the laws create in communication with clients, the fears and concerns that HIV-positive clients have about disclosure and the uneven knowledge that both clients and support workers have on how to apply the current law.