The following statement is issued by the Canadian HIV/AIDS Legal Network (“Legal Network”). Comments can be attributed to Richard Elliott, Executive Director of the Legal Network.
April 23, 2019 — The British Columbia Prosecution Service (BCPS) has issued an updated policy on criminally prosecuting cases of alleged HIV non-disclosure. This policy falls short of what is needed and continues to put people living with HIV in British Columbia at risk of unjust prosecution.
In some important respects, the new BCPS policy runs counter to the extensive, science-based evidence and recommendations we’ve provided to the B.C. Attorney General and the BCPS over the past year — including the international expert consensus statement published last July by leading HIV scientists and scientific organizations from around the world to better inform the criminal justice system.
In Canada, people living with HIV can be charged with aggravated sexual assault if they don’t tell their sexual partner they have HIV, even in cases where there is little or no risk of transmission. Canada also has one of the highest rates of prosecutions for this offense in the world.
In December 2018, Canada’s Attorney General finally issued a directive to limit HIV non-disclosure prosecutions, but it only applies in the territories where federal prosecutors handle Criminal Code prosecutions. We had hoped that British Columbia would prove itself to be a leader and go even further toward justice than the federal government. But BCPS’s new policy indicates only minor progress in limiting the overly broad use of the criminal law, and does not adequately consider human rights, updated science or international guidance on this issue.
Sadly, people living with HIV in British Columbia are still subject to a policy that is deficient, leaving them exposed to unscientific, unjust prosecution.
Of greatest concern is that the BCPS has refused to clearly rule out prosecuting people who use condoms. Instead, the new policy says only that using a condom is a factor that “may” weigh against prosecuting someone. Given that a correctly used condom is 100% effective in preventing transmission, it is terribly misguided that people living with HIV could face years in jail and be designated “sex offenders” for the rest of their lives, even when implementing the effective safer sex practice recommended as a cornerstone of HIV prevention since the virus was identified decades ago.
It is a positive step that the policy now clearly states there will be no prosecution in cases where the person living with HIV has a suppressed viral load for at least four months because there is no risk of transmission. The new policy also says there should be no prosecution for having just oral sex, although with the caveat that there are “no other risk factors present.” These statements reflect the scientific evidence. It’s therefore disappointing that the BCPS is unwilling or unable to act on the scientific knowledge we have about condoms.
People living with HIV in British Columbia deserve better.
Emma Riach, Communications and Campaigns Officer
Canadian HIV/AIDS Legal Network
Telephone: +1 416 595-1666 ext. 236