The Issue
In 1999 the Supreme Court of Canada ruled that HIV-positive people who fail to disclose their serosatus to their partners before unprotected sex can be convicted of aggravated assault. In 2003 the Supreme Court raised the possibility that a person may be charged criminally even if they don’t know for certain that they are HIV positive.
Since 1999 several men, many of them gay, have been charged and convicted of aggravated sexual assault and even murder for failing to disclose that they are HIV positive.
The problem is this: The transmission of no other pathogen from one person to another — tuberculosis, hepatitis, human papiloma virus, syphilis — is criminalized. HIV stands alone.
HIV transmission remains a criminal matter even though public health authorities across the country — the apparatus that addresses transmission of every other communicable disease — are far better equipped to deal with HIV transmission than is the criminal justice system.
To have an HIV-positive man charged with aggravated sexual assault, a sex partner need only complain to police. Police will launch an investigation that is likely to include wanted posters and media advisories. There need be no actual transmission of the virus. The complainant may not even be telling the truth. This serves to further stigmatize HIV-positive people and to turn gay men against each other.
As a so-called victim of sexual assault, the identity of the complainant is automatically protected by court-imposed publication ban while the identity of the accused, as a sex criminal, is likely to be splashed across the mainstream press. It is almost impossible for accused persons to defend themselves in the forum of public opinion and it is very difficult for journalists to ever tell the whole stories.
The threat of criminal and social sanctions against people living with HIV acts as a disincentive for everyone to get tested and treated for HIV and encourages a state of denial in those who may be carrying the virus. That effect further complicates HIV-prevention efforts.
The law implies that HIV-positive people alone bear responsibility for HIV prevention. It does not account for the reality that everyone is responsible for his or her own sexual health. It’s a simple equation: Insist on safer sex and you will likely never become HIV positive, indulge in unprotected sex and you must assume the risk that you may become positive.
Criminalization serves to entrench the irrational stigma, rooted in homophobia and prudery, associated with HIV and those living with it.