The Liberal government wants to limit the cases where Canadians are prosecuted for not revealing they’re HIV-positive when they pose a “negligible” risk to their sex partner.
A new study from the federal Justice Department released today says the criminal justice system has not kept pace with scientific strides in HIV treatment, leaving too many Canadians facing prosecution for non-disclosure.
Current research shows that having sex with an HIV-positive partner who is taking treatment and has a suppressed viral load poses little or no risk of transmission.
“A person living with HIV who takes their treatment as prescribed is acting responsibly,” it reads.
Yet the report says HIV is treated in “an exceptional way” by the criminal justice system compared to other transmissible diseases like hepatitis B, C and human papillomavirus. Prosecutions for nondisclosure of HIV appear to be “disproportionate and discriminatory” given the relatively high number, according to the study.
Statistics show people from marginalized backgrounds, including Indigenous, gay and black persons, are more likely than others to be living with HIV in Canada. Fear of stigma and prosecution can deter people from getting tests and treatment, according to the report.
New prosecution guidelines
Justice Minister Jody Wilson-Raybould said the study underscores the need for the criminal justice system to adapt to medical advancements and scientific evidence. She wants to discuss new prosecution guidelines with her provincial and territorial counterparts, but stopped short of promising legal reform.
“Our government is taking action to help reduce the stigmatization of persons living with HIV, including undertaking an evidence-based approach to addressing HIV non-disclosure in the criminal justice system,” she said in a statement.
Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, called the report “heartening” and a “welcome step forward.” But he said provinces must adopt prosecution directives that decriminalize cases not only where the person is taking treatment, but also where the person has taken precautions.
“You should not be prosecuting people who use condoms, you should not be prosecuting people for engaging in oral sex. The science doesn’t warrant it,” he said. “So today is good, but we still have work to do.”
Shared risk factor
Other advocates say guidelines are not enough, insisting the criminal law should never apply to people with HIV.
Gary Lacasse, executive director of the Canadian Aids Society, said the risk factor is a shared responsibility between two people engaging in sexual activity. Existing provisions in the Criminal Code can capture those extremely limited cases where an individual deliberately tries to pass on HIV, but he said the bulk of cases where there is no intent should never be criminalized.
“If someone is still willingly intending on transmitting HIV, that law already exists. But the criminalization of someone who is HIV positive with no intent to transmit should be abolished,” he said.
“The end game is you are increasing stigma and discrimination against people who are living and treating themselves with HIV.”
High prosecution rate
This week the Canadian Coalition to Reform HIV Criminalization, backed by 150 organizations, urged the Liberal government to reform the Criminal Code so sexual assault charges can’t be used in HIV cases.
With more than 200 prosecutions to date, Canada has the third-largest total number of recorded prosecutions for alleged HIV non-disclosure in the world, and one of the highest rates of prosecution in the world, according to the coalition.
There is no specific law on disclosure of HIV in the Criminal Code, but not revealing status to a sex partner can, and has, led to assault or sexual assault charges, because it is seen as a factor in a partner giving consent.
The law does not require disclosure of HIV in every case. A 2012 Supreme Court of Canada decision ruled that criminal law imposes a duty to disclose HIV positive status before sexual activity when it poses a “realistic possibility of transmission,” so the HIV negative partner can decide whether to take the risk.
The study was released to coincide with World AIDS Day, and follows a historic apology from Prime Minister Justin Trudeau in the House of Commons this week for past state-sanctioned discrimination against the LGBT Canadians.