Punishing condition: Richard Elliott and Michael Orsini on why the criminalization of HIV non-disclosure is a step backwards

The following op-ed was published in the November 24, 2014 edition of the Winnipeg Free Press. Michael Orsini is director of the Institute of Feminist and Gender Studies and associate professor in the School of Political Studies at the University of Ottawa. Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network.

We’ve made great strides scientifically since AIDS was first met with widespread fear and stigma in the 1980s. But the treatment of HIV in Canada’s courts represents a giant step backward.

Canada stands out globally in its vigorous prosecution of people living with HIV. To date, more than 150 people have been criminally charged in Canada — most commonly for aggravated sexual assault — for not disclosing their HIV-positive status, according to tracking by the Canadian HIV/AIDS Legal Network. A minority of cases involved people who actually infected others; in a majority of cases, convictions resulted from merely exposing a sexual partner to the risk — usually very small — of HIV infection. And in too many instances, people have been convicted even when there was zero, or close to zero, risk of transmission.

In a landmark judgment in 1998, the Supreme Court of Canada ruled that someone with HIV could be found guilty of aggravated assault for not disclosing their status to a sexual partner if the activity in question posed a “significant risk” of transmission.

In subsequent cases, the court revisited this standard — and while it remains to be seen just how their latest pronouncement will play out, human rights advocates have criticized the court for diluting the requirement of “significant risk” to the point that even the most minuscule of risks — or even some cases involving zero risk — are being treated as sufficient to convict someone of one of the most serious offences in our law.

This latest development has led dozens of Canada’s scientific experts on HIV to publish a consensus statement earlier this year, expressing their concerns about the scope of criminal prosecutions, which too often ignore the scientific evidence about the very low, negligible or even non-existent risks of transmission in many instances.

Too often, media coverage has also contributed to a lack of careful reasoning about this complex issue. From high-profile cases involving pro football players to the lurid coverage associated with the Ottawa case of the so-called Poz Vampire to the recent case of a Winnipeg man accused of infecting two women with HIV, there has also been a steady march of salacious headlines and stories. These remind us that more than three decades into the epidemic, little progress has been made in challenging dominant, stigmatizing representations of people living with HIV. In the place of nuance, or an explicit appreciation for the context in which sexual decision-making by autonomous adults takes place, we have instead images of cold, calculated perpetrators. Gone are the complexities of people’s lived experiences, including those of poverty, violence, sexism, homophobia and racism.

And we cannot ignore stigma and prejudice, which often lurk just below the surface of the discussion. For instance, in one of the first cases involving HIV and the criminal law in Canada, a Ugandan-born shopkeeper was vilified in the media — and it is hard to avoid noting, in that case and in numerous others (such as the most recent case to make headlines locally), the prominent emphasis on the race or ethnicity of the accused or that she or he at some point migrated to Canada. Interestingly, in Ontario, where systemic racism has been documented in the criminal justice system, one study found that black men represent more than half of those accused in cases involving heterosexual activity, despite representing a small proportion of the total number of people living with HIV in the province.

The criminalization of HIV nondisclosure is contentious. Many AIDS service organizations in Canada and elsewhere have spoken out against the over-extension of the criminal law to deal with HIV. Among other concerns, it should be self-evident that criminalization — especially when it reinforces misunderstandings about the risk of transmission of the virus — increases stigma and frustrates public-health efforts to encourage people to get tested in the first place. If you’re seen as a potential criminal for not disclosing that you have HIV, even if you’ve taken highly effective precautions such as using a condom or your medication means you’re essentially non-infectious, would you risk getting tested?

Against such a backdrop, the activist organization AIDS Action Now! recently launched Think Twice, a campaign that encourages individuals to reconsider whether it is appropriate to report a sexual partner with HIV to the police or press charges. Many accept that criminal law might be appropriate in the exceptional case of an individual who deliberately seeks to cause harm by infecting someone. However, it is misguided to treat non-disclosure of information in the context of a consensual sexual encounter the same way under the law as the use of physical force, or the fear of force, to commit what we normally think of as sexual assault. And the danger of a hyper-criminal response to HIV is that it frames all cases involving transmission of, or exposure to, HIV in simplistic terms of “offender” and “victim” — even when there has been little or no risk of transmission.

Opposing an overly broad use of criminal charges should not be confused with discounting the experiences of complainants. HIV infection is no longer the death sentence that it was in the early days, but certainly remains serious and life-changing. This is why we need dedicated, frontline AIDS service organizations and the prevention, care and support services they provide.

But, as ethicists Ronald Bayer and Robert Klitzman observe: “HIV continues to be spread not from malevolence but from sexual behaviours and drug use that do not entail a wish to harm others.” This suggests the use of the criminal law is limited. “How could it be otherwise,” they ask, “where ambiguity (in sexual partners’ communication) is often the norm, and where definitions, even of basic terms such as disclosure, truth, lies, risk, and safer sex, provoke disagreement?”