Jury’s in – HIV criminalization is a crime!

Jury’s in – HIV criminalization is a crime!

By Brook Biggin | May 25 2017

“Jury’s in! HIV criminalization is a crime!” – A rather bold statement, no? Likely intended to cut through the endless stream of content vying for just one, unadulterated moment of your attention; to pierce the wall of fake news, Trump memes, and pussycat videos occupying your newsfeed.

But bold or not, sufficiently “click-baity” or not, it is not true. HIV Criminalization – or more descriptively, the criminalization of HIV non-disclosure – is not a crime. Instead, it very much is the law. And not in the same way that “sodomy” is still “on the books” in some places but is not enforced – because it’s 2017 and we all know better, right?

No. HIV criminalization is the law. It is enforced. And it does disproportionately affect the most vulnerable of those living with HIV across our country. No. We do not know better.

Now, this piece of writing isn’t intended to, nor should it, act as a substitute for an in-depth read on HIV Criminalization in Canada. The law and its application can be complex, uneven, and frustratingly ambiguous. So, to get a better handle on the intricacies, pop on over to the Canadian HIV/AIDS Legal Network. But for our purposes, here’s a brief overview:

People living with HIV in Canada can be – and are –charged, prosecuted, and jailed for failing to disclose their HIV status before having sex with another person – if it is determined that there was a “realistic” possibility of HIV transmission.

The determination as to whether or not there was a “realistic” possibility of transmission can differ depending on the person(s) responsible for making that determination as well as the circumstances in question (ie. what type of sex has been had, what the viral load of the HIV-positive partner was, and whether or not a condom was used).

Charges can be brought regardless of whether or not there was intent to transmit the virus, in addition to whether or not HIV transmission actually occurred.

Application of the law varies from case to case but the most common charge levied against HIV-positive people in these circumstances is aggravated sexual assault. The rationale for this is as follows:

Sexual contact without consent is sexual assault.

Consent is invalidated if a person fails to disclose something that would have changed their sexual partner’s decision to consent – such as one’s positive HIV status.

If it is determined that the individual would not have consented to sex if they were aware of the partner’s positive HIV status, then consent would be invalidated, leading to a potential charge of sexual assault. And since the courts have historically considered HIV to pose risk of significant bodily harm or endangering someone’s life, the charge often applied is aggravated sexual assault.

So, what’s the big deal? Sounds about right, no?

I wouldn’t be surprised if that was your response. It takes just a short scroll through the comment section of almost every mainstream article I’ve ever read about HIV criminalization – particularly those in mainstream queer media – to determine that the majority, or at least a loud minority, are quite happy with the law just as it is. Yes, even “the gayz”.

You see, the reason why some of our friends, family, and neighbours – maybe even you – support HIV criminalization is because it’s built upon the concept that it protects you from something that you ought to fear; that the only thing standing between you and an unending string of dark, vampirical figures roaming your streets at night, looking to pad their masses, is the rule of law. And when such anxieties are preyed upon, people can be convinced to do all sorts of things otherwise uncharacteristic:  vote a demagogue into office; build a border wall; demonize an entire religion. Therefore, the ongoing oppression and criminalization of those living with HIV should not come as a surprise when viewed in that light.

But make no mistake, the criminalization of HIV non-disclosure is no more about protecting people from HIV infection than opposition to transgender individuals using the bathroom that matches their gender is about protecting children and cis women. It’s a scam. And it is time for us to wake up. 

There is not one – and I repeat, not one – shred of evidence that shows that the criminalization of HIV non-disclosure has been effective at reducing the number of HIV infections amongst Canadians. In fact, any evidence we do have points in exactly the opposite direction. Here’s what we know:

Fiction: HIV Criminalization has a positive impact on the fight against HIV, as requiring people living with HIV to disclose their HIV status before having sex with someone else will prevent new infections.

Fact: HIV Criminalization discourages people from getting tested (as acknowledged by our Justice Minister this past World AIDS Day). This means less people diagnosed, less on treatment, and less undetectable. And with less HIV-positive Canadians being undetectable, that means less who are, in simplest terms, “uninfectious” or unable to transmit HIV to sexual partners.

Additionally, the majority of new HIV infections in Canada can be attributed not to people living with HIV who have been diagnosed but rather the 20-25% of HIV-positive Canadians who are unaware of their status. Therefore, the current law ineffectively targets the people who are the least likely to transmit the virus (those who know their status and are more likely to be on treatment) while discouraging those who are most likely to transmit the virus from getting tested and getting linked to treatment themselves.

Fiction: HIV is a terrible, fatal disease that will endanger an individual’s life, possibly leading to death.

Fact: On average, a Canadian in their 20s who is diagnosed with HIV and starts treatment early can expect to live until their early seventies, just several years short if the average life expectancy of Canadians; and can live much longer if they lead a healthy life. 

Fiction: HIV Criminalization is needed to control all of those crazy poz people out there looking to intentionally and maliciously infect other people.

Fact: This very rarely happens. The ratio of terrible poz people is probably pretty similar to the ratio of terrible people out there in general. So, yes, that person may exist and if so we do need to ensure appropriate measures are taken to rehabilitate them. But no reasonable advocate for HIV Criminalization Reform is saying that the extremely rare case where someone does attempt to maliciously infect someone shouldn’t be responded to appropriately. Instead, they are calling for the end of an oppressive and ineffectual practice which further marginalizes people with no intent to do harm.

Additionally, HIV Criminalization disproportionately impacts people of colour and indigenous people living with HIV, adding one more example of our legal system’s disproportionate use of force against racial and ethnic minorities. And when these cases occur, the law – having proven no practical benefit – simply acts as yet one more way to demonize the “other”, with cases involving men of colour receiving exponentially more media coverage than those involving their white counterparts.

So, I call bullshit. And everybody who knows – who really knows – knows it’s bullshit too. Just look to the recent medical consensus, agreed to by the top HIV medical professionals and service organizations in the world, which states that when we test, diagnose, and treat someone living with HIV and that person achieves an undetectable viral load, they will NOT sexually transmit the virus to anyone else. Period. Condoms or no condoms. It’s science bitches.

So, why, oh fucking why, are we having this conversation? If we know – and we do – that HIV Criminalization does nothing to protect Canadians from HIV infection, and in fact hinders our efforts in combatting the virus, why is there so much as a question about HIV Criminalization Reform or the implementation of prosecutorial guidelines that combat the over-criminalization of HIV non-disclosure?

I don’t fuckin’ know! Why couldn’t the gays get married? Why couldn’t women vote? Chances are, if you’ve stumbled upon this piece of writing, any arguments made against those rights would sound ridiculous; and they are.

But don’t forget, they weren’t always. There was, at some point, a significant source of support behind keeping each of those rights at bay. Until enough people took the time to learn about the issues from those most affected. Until people chose to accept the hard evidence over propaganda. Until enough people took a stand for what was right.

You don’t often get the opportunity to take a stand against injustice. Not a real stand. Not before it becomes popular and half the internet is standing with you.

It’s 2017. Women have the right to vote. The gays can marry. The chance to fight on those fronts has passed. Now, your support for those rights is still appreciated. I mean, I’ll take one less shithead flailing around making noise about something that is NEVER going to change any day. But you don’t get a cookie for simply not being a terrible person.

Think back to the Conservative Party, who last year, a full eleven years after it was the law of the land, finally backed same-sex marriage. Some of my fine LGBTQ folks and allies applauded the decision. “Progress!” Meanwhile, I was over here like, “Really Sally? You showed up to my party eleven years late and you still want the Sephora gift bag? Nah-ah. Take a seat.” 

No. To truly take a stand. To truly affect change when it matters, you have to have some skin in the game. It means educating yourself now. It means supporting activists now. Signing petitions now. It means that our elected representatives act on the evidence in support of HIV Criminalization Reform now and don’t sit on their hands waiting until popular opinion eventually comes around, leaving poz Canadians in a dangerous limbo where they are one unfortunate situation, one disgruntled partner, away from potentially facing years of prison time.

Due to a lot of hard-won progress, we now stand in a place where there are only so many ways left to truly stand alongside poz Canadians in their fight for justice. You’re willing to fuck undetectable poz guys? Big deal. There is literally no risk there. Perhaps five years ago I – a poz guy myself – might have appreciated your willingness to learn and do your small part in fighting the stigma and sexual rejection poz guys in our community face. But not now. There’s no progressive stance left to take there anymore. No skin left in that game; just a simple acceptance of the facts.

But with criminalization… this is big! In my line of work, I get to see first-hand just how much people do not know about HIV; just how much stigma is faced by people living with HIV today in our community and amongst broader society. There’s still a journey there. There’s still a fight. You can still join us – when it matters.

I hope that you do. 

Photo credit: Shayne Woodsmith

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