“I would not have consented to sex had I known of their HIV” status. This statement is problematic and here’s why.
On June 15, 2017 the Canadian HIV/AIDS Legal Network held a symposium in Toronto, Ontario, Rethinking Justice: the 7th Symposium on HIV Law and Human Rights. The symposium focused on unjust HIV criminal legislation in Canada.
Canada unfortunately has one of the worst records in the world for the overly broad use of criminal laws to address HIV nondisclosure. Panels of experts and those with lived experience of HIV criminalization presented their research and experiences. The legal experts discussed the history of the nondisclosure law and how the notion of “fraud” relates to criminal laws for nondisclosure.
In Canada when a person does not disclose their HIV status to sex partners it is considered an act of fraud where consensual sex did not take place. Because the sex is not consensual, as the complainant maintains they, “would not have consented to sex had they known of their partner’s HIV status” charges of aggravated sexual assault are applied. Aggravated sexual assault comes with a prison sentence which can range from ten years to a life time imprisonment where it is deemed the person posed a significant risk of serious bodily harm, which posed a realistic possibility of transmission of HIV.
Presented here are a couple of highlights of Supreme Court of Canada rulings, which the reader can explore further. The Supreme Court of Canada rulings laid out the terms and conditions for which “fraud” could be used to prosecute people living with HIV for non-disclosure of their status. The focus of this article is on the notion of fraud from the perspective of people living with HIV including the detrimental effects legislative and popular belief pose.
In 1998 the R v. Cuerrier, (1998) 2 SCR 371 ruled in a nondisclosure of HIV case that
“HIV/STI non-disclosure amounts to fraud vitiating consent, thus transforming consensual sex into a sexual assault when,
- there is a “significant risk of serious bodily harm”
the complainant would not have consented to sex had they known accused person’s status
exposing a person to the risk of HIV “endangers life” and therefore is considered aggravated (sexual) assault
In 2012 the R v Mabior, (2012) SCC 47 and R v D.C. (2012) SCC 48 ruled specifically in the case of HIV: there needs to be a “significant risk of serious bodily harm”, which poses a “realistic possibility” of transmission of HIV.
Section 265 (3) (c) of the Criminal Code of Canada states: fraud vitiates consent to contact. For the purposes of this section, no consent to physical contact is obtained where the complainant submits or does not resist by reason of fraud.
You can read more about these Supreme Court of Canada rulings, a complex phenomenon where the highest court in the country has intervened with no clear resolution to date as Canada remains a world leader in prosecutions for non-disclosure of HIV status. There are approximately 187 non-disclosure prosecutions in Canada to date.
In the meanwhile here’s the latest on nondisclosure and the notion of fraud and “reasonable risk” of transmitting the HIV virus, as experienced on interpersonal levels by people living with HIV.
That a person can choose to not have sexual contact with someone living with HIV and then have the option to pursue criminal charges of aggravated sexual assault on the basis of fraud and “risk of transmission” if they realize after the fact they did not practice universal caution in the first place, is problematic on many levels.
Here’s why: it fuels stigma and discrimination against people living with HIV. It deters people from getting tested for HIV and knowing their status and seeking treatment. It fuels criminalization of HIV non-disclosure. (Criminalization has not proven to be effective in lowering rates of HIV transmission.) It reinforces an imbalance of power for individuals in taking responsibility for their own sexual well-being.
” It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status.”
Charging people with fraud in HIV non-disclosure cases exacerbates lack of education in regards to modern scientific information in the world of HIV. It does not take into consideration the fact that having an undetectable viral load makes it impossible to transmit the virus (Undetectable=Untransmittable or U=U). As well there is no acknowledgement of pre-exposure prophylaxis (PrEP) as a prevention measure).
Criminal charges remain value laden and racist as they tend to target marginalized groups of minorities, rather than being driven by scientific evidence and facts.
The general public behaves negatively towards disclosure, discouraging people from being open about their status and in some instances making it impossible. The general public has the strong arm of the law on their side and they can always prosecute someone for nondisclosure, using fraud as a basis, without giving any thought to how they might manage disclosure differently.
People living with HIV want to disclose, as every person who struggles with disclosure will attest. It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status. This includes severe stigma, using disclosed information in damning ways to harm persons living with HIV as well as potentially many forms of violence (especially toward women who are in positions of power imbalances in relationships), blackmail, constant rejection and the more subtle kinds of rejection which are often the most hurtful.
People living with HIV want to pursue some sort of normalcy in fulfilling their basic human need and basic human right to intimacy and relationships with others. After a while, as a means of self-preservation, disclosing becomes not so easy for all the reasons described.
How can the general public insist upon disclosure when they set the tone and grounds for unsuccessful disclosure?
It’s fucked. People living with HIV are fucked.
The power imbalance is blatantly tipped in favour of the HIV-negative.
But if people are going to continue with irrational expectations, whereby the HIV-positive are obliged to disclose their status or risk prosecution, yet are bashed, stigmatized and often threatened with different types of violence when they do meet their obligation to disclose, then what are people living with HIV supposed to do?
This situation sets the stage for non-disclosure and everything that entails.
The irony is not lost as the HIV-positive continue to disclose and make every effort to convey modern facts about HIV in the hope that it will make disclosure easier. To date, it has not been effective. As a matter of fact, the stigma around HIV disclosure is worse than ever.
This irrational pattern of thinking leaves people living with HIV in a position where it is often near impossible to get the facts out about modern science which dispel myths and stigma that are rooted in fear and ignorance. People living with HIV face deprivation of intimacy and relationships that are key components to a healthy lifestyle, and part of basic human needs like hunger and thirst.
If people go for prolonged periods without their basic human needs met I would hazard a guess they are not in the greatest state of mind or body while struggling with the stress and constant reminder that life is not as it should be. They might be thinking about what it would be like to experience intimacy, free of the complications, just this once. “Oh to escape from this imposed burden and to feel normal again, just for a while.” This is a key factor in disclosure complexity.
Here are a few options available to people living with HIV under these circumstances. None of them are ideal:
Never be intimate again. Live in isolation and fear of prosecution as well as discrimination from the general public.
Continue to disclose and suffer the backlash with the end result being more stigma and bashing, no intimacy, with continued responsibility and onus being on people living with HIV to disclose. Live with fear of prosecution even if disclosure occurred.
Remain hopeful and continue to educate and advocate for change in public perception and legislation, which recognizes scientific modernization proving that the HIV-positive are not a risk. Recognizing how intimacy is a basic human need and right.
Continue to advocate for changes in HIV criminal laws that are to date not effective, while trying to maintain hope for a more favourable and balanced situation than the disclosure dilemma we now see.
It’s time to rethink the statement, “I would not have consented to sex had I known of their HIV status.” A person living with HIV, who is on medication and has an undetectable viral load cannot transmit the HIV virus sexually. Why would you not have sex with a person who is living with HIV?
It’s time to learn and absorb this vital information which changes the notion of what “reasonable risk” means and which offers a new, fear-free perspective to people living with HIV.
Modern scientific developments have been a secret well guarded by gatekeepers, as this information is largely left out of the criminalization discussion. This scientific information is not new or cutting edge, yet is not discussed with the general public or taken account of in legislation.
Prosecutions, discrimination and ostracism remain the favoured options in managing HIV disclosure here in Canada.
The general public, supported by legislation and policy, has created this situation; how can they begin to fix it? What about some suggestions for the general public and law makers? People living with HIV already know what their responsibilities are.
Education leads to change in thinking, change in decision making, and a change in the statement, “I would not have consented to sex had I known of their HIV status.” Change in legislation and change in public perception would ultimately lead to a decline in transmission rates, improved quality of life for people living with HIV and the removal of the stress and threat of criminalization.
If people living with HIV are received with positive and supportive responses, disclosure of HIV will be far less complex and hopefully one day it will be a nonissue.
But back to the fraud charges, and some questions to ponder in this complex state of affairs: How can people living with HIV be criminally charged with fraud, under the circumstances described here? Can those who make disclosure difficult be prosecuted for fraud? Does choosing not to know the facts while promoting ignorance and in turn harm to people living with HIV constitute fraud? If disclosure were more of a shared responsibility, would there be such harsh legislation in place?
And how can responsible decisions be made and opinions formed which ignore scientific facts?