Time to decriminalize HIV non-disclosure

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca) a division of LexisNexis Canada.

By India Annamanthadoo and Richard Elliott

(August 10, 2022, 9:55 AM EDT) — Canada has long been one of the world’s worst offenders when it comes to prosecuting people living with HIV for alleged non-disclosure of their HIV status. Since 1988, there have been more than 220 such prosecutions. Not only are we a world leader by the numbers, we’re charging people with disproportionately harsh offences — in most cases, aggravated sexual assault, even when HIV was not transmitted and there was little to no risk of transmission. And if convicted, a person is automatically added to the sex offender registry for life and, if they are a non-citizen, they are deported.

Advocates have long called for law reform to end the injustices, sentiments that have been echoed repeatedly by UN expert agencies, human rights bodies, judges, women’s rights advocates and scientists. In 2017, after much consultation with the community, the Canadian Coalition to Reform HIV Criminalization (CCRHC) — of which the HIV Legal Network is a founding member — released its first Community Consensus Statement. This important statement outlined why Canada’s approach to HIV criminalization needs to be reformed and called for some specific actions that governments at all levels could immediately take. In response, the government of Canada and the federal attorney general repeatedly acknowledged that the issue needs to be addressed and, in 2018, instructed federal attorneys in the three territories not to proceed with cases involving alleged non-disclosure in certain circumstances.

But for several years after that, there was little further concrete action. While other countries and international actors moved to end HIV criminalization, Canada maintained the status quo — even after the House of Commons Standing Committee on Justice and Human Rights recommended law reform back in 2019. Still today, HIV non-disclosure remains criminalized in Canada.

Criminalizing a health condition like HIV feeds stigma and, rather than discouraging transmission, actually increases its likelihood as people avoid getting tested. Not getting tested protects them legally as the laws only apply to people who know their status, but it also raises the risk to their health. Criminalization also doesn’t account for the reasons some people may not be able to disclose their HIV status, namely power imbalances in relationships or a fear of violence or other consequence should they disclose.

At the recent 24th International AIDS Conference in Montreal, the CCRHC released their 2022 Community Consensus Statement, which is the result of months of consultations with people in the HIV community across Canada. This new statement builds on the recommendations from the first statement and outlines exactly what needs to be done to reform the law. First, HIV transmission, exposure, and non-disclosure need to be removed from the reach of sexual assault laws, including the mandatory registration as a sex offender. If sex is between otherwise consenting adults, non-disclosure should not be prosecuted as an alleged sexual assault. Doing so harms people living with HIV, but also undermines these laws as a tool for addressing sexual violence.

Second, legislative amendments must ensure that HIV-related prosecutions are limited to cases where there is actual, intentional transmission of HIV. This is in keeping with numerous international recommendations. It also recognizes that the heavy, blunt instrument of the criminal law should be a measure of last resort, reserved for conduct deserving of such sanction and where actual harm is caused.

Third, Canada must end the deportation of non-citizens after their conviction. This practice has always been based in part in racism, regardless of the offence, and adds an additional dimension of harshness to the criminalization of people living with HIV.

And finally, all previous convictions relating to HIV non-disclosure must be reviewed. The law should create an opportunity for such review and for a past conviction to be expunged if it does not fit within the new limitations on the scope of HIV criminalization. With the scientific evidence now available and more understanding of how HIV is transmitted, there can be no excuse for maintaining convictions based on outdated beliefs.

In the days before the recent AIDS conference, the government of Canada announced that it would be starting consultations on HIV law reform in the coming months. While we welcome this announcement as a step toward legislative change, we would also like to remind the federal government that consultations with the HIV sector have already produced concrete law reform proposals to end unscientific, discriminatory prosecutions. It’s up to them to act.

India Annamanthadoo is a policy analyst with the HIV Legal Network. Richard Elliott is a human rights lawyer and former executive director, HIV Legal Network.