Currently in Canada, an HIV-positive person can be charged with Aggravated Sexual Assault, sentenced to life imprisonment, and registered as a Sex Offender if they have sex without first disclosing their status, even if they had no intention of causing harm, even if they used a condom, even if the other person didn’t ask, and even if HIV was not transmitted.
Disclosure: Sharing your HIV status with others, including family, friends, lovers and other sexual partners.
Criminalization: The use of The Criminal Code to turn a behaviour into a crime, and turn a person into a criminal, punishable by law.
The science of HIV is moving forward, but the law is not.
In 2012, the Supreme Court (SCC) of Canada ruled that HIV-positive people have a duty to tell their sexual partners that they are HIV-positive before having sex that poses a “realistic risk of HIV transmission.” According to the SCC, this includes condomless sex, even with a low viral load, or sex with a condom and a higher viral load.
This legal stance ignores evidence that proves condoms are highly effective at preventing HIV transmission, regardless of viral load. According to the Canadian AIDS Society, anal and vaginal sex with a condom is considered low risk for HIV transmission. And research shows that having a low or undetectable viral load can greatly reduce the risk of HIV transmission.
There is NO research to show that criminalization of HIV non-disclosure prevents people from engaging in condomless sex or causes people to disclose their status. There IS growing evidence that criminalization undermines community and public health efforts to stop HIV and HIV stigma. There is already public health legislation in effect that is designed to assist medical professionals with controlling infectious disease.
The use of the criminal law as a response to non-disclosure:
Affects people’s willingness to access HIV and STI testing,
if knowing their status puts them at risk for criminalization.
Increases stigmatizing attitudes in the general public by portraying people living with HIV as “potential criminals.”
- Ignores the realities of our communities and the ways that we have sex.
Prevents people from being open and honest with their healthcare provider about the types of risks they’re taking.
Disproportionately impacts specific groups, including racialized men and newcomers to Canada, aboriginal women, prisoners, sex workers, and people in contact with law enforcement.
Undermines the human rights of people living with HIV, including their sexual and reproductive health rights and rights to privacy, equality and security of the person.
Most people living with HIV practice safer sex, and/or disclose their HIV-positive status to their sexual partners. It is everyone’s responsibility, whether they know their HIV status or not, to ensure that HIV and other sexually transmitted infections are not transmitted. Criminalization disproportionately places the responsibility for preventing HIV transmission on people living with HIV.
Seek support from your community to build confidence around disclosing your status.
Create an opportunity for disclosure by saying “I’m neg and poz friendly,”
or “I’m poz and undetectable.”
Think about how comfortable you are disclosing your status (neg, poz or unknown), and plan how and when you might want
to do it.
Check out this video series on criminalization from the Canadian HIV/AIDS Legal Network (http://www.aidslaw.ca/site/)
If you’re choosing partners based on their
HIV status (sero-sorting), consider how your rejection might make someone who is
Think Twice about pressing charges if you’re HIV-negative and found out someone you had sex with is HIV-positive [www.thinktwicehiv.com/]