Stay informed: The Legal Network’s new resources on criminalization of HIV non-disclosure

CKBlog by Cécile Kazatchkine, Senior Policy Analyst

The overly broad criminalization of HIV is not a uniquely Canadian problem. In many countries around the world, a person living with HIV can be prosecuted, convicted and sent to prison for not disclosing their status, exposing someone to HIV or transmitting the virus.

The situation in Canada is particularly infuriating at this juncture with few developments in line with public health or human rights, But other jurisdictions such as Denmark, Switzerland, Sweden, Senegal and Iowa have recently made significant legal changes. The latest example: in July during the International AIDS Conference (AIDS 2014) in Melbourne, Australia, it was announced that the law criminalizing HIV transmission in the Australian state of Victoria would be repealed. This was the only HIV-specific law in Australia that criminalized intentional transmission. It will be amended by the Victorian government to reduce further stigma and discrimination facing people living with HIV.

It is time for Canada to join this roster of “success stories.” As a representative of the Canadian HIV/AIDS Legal Network at AIDS 2014, I was particularly frustrated to witness Canada being referred to as a “bad example” in the international community.

With at least 155 people prosecuted to date, Canada has a particularly aggressive approach to criminalizing HIV non-disclosure, even where no transmission takes place. The legal test became ever more strict in 2012 when the Supreme Court of Canada ruled that using a condom or having a low or undetectable viral load was not sufficient in itself to exclude criminal liability for not revealing one’s HIV status to a sexual partner, although it is clear that the risk of transmission, under these circumstances, is extremely low.

But all hope is not lost! I am counting on you to help us fight against the criminalization of HIV non-disclosure in Canada.  We are seeing some steps in the right direction. For example, in November 2013, a young man charges in relation to not disclosing his HIV-positive status to a sexual partner was acquitted in Nova Scotia, even though he had had sex without a condom and without disclosing his HIV status. The court accepted the evidence presented by the medical expert at the trial who testified that the risk of transmission in this situation was close to zero (the accused had an undetectable viral load).

Furthermore, in May 2014, close to 80 Canadian experts endorsed a statement outlining the low-to-zero possibility of a person living with HIV transmitting the virus in various situations and expressing concern that a poor appreciation of science was contributing to the overly broad use of criminal charges against people for alleged non-disclosure of HIV status. This statement will be extremely useful in future court cases and advocacy efforts. Finally, we are seeing an increasing number of feminist allies criticizing the criminalization of HIV non-disclosure and the inappropriate use of aggravated sexual assault in these prosecutions. The community mobilized to fight against unfair criminalization continues to grow, in Canada and internationally.

As new cases continue to emerge in Canada, I encourage you to learn about criminalization by accessing our resources. We have just released an up-to-date set of three information sheets on HIV and the criminal law, we have produced (with Alison Duke of Goldelox Productions) two new short videos in that explain that current state of the criminal law in Canada and what is wrong with it, perfect for personal viewing or for use in workshops or classes, and we also have a new webinar that you can watch from the comfort of your own computer to get accurate, accessible information on your rights and responsibilities under the criminal law. Of course our documentary Positive Women: Exposing Injustice and other resources continue to be available through our webpage.  Please share this information with your colleagues, talk to those around you and, most importantly, stay tuned because we will need you in September!