Combatting HIV criminalization in Canada Beyond Blame: A Feminist Dialogue on Criminalisation of HIV Transmission, Exposure and Non-disclosure – Durban AIDS 2016 Cécile Kazatchkine Senior Policy Analyst ckazatchkine@aidslaw.ca

HIV criminalization in Canada In Canada, a person living with HIV (PHA) can be prosecuted for not disclosing their HIV-positive status before having sex. The legal obligation to disclose was established by the Supreme Court of Canada in Cuerrier in 1998. People can be convicted even if HIV was not transmitted (criminalization of non-disclosure). Since a 2012 SCC decision, PHAs are at risk of prosecutions even if they used a condom OR had a low viral load.

HIV criminalization in Canada More than 180 people have been charged for HIV non disclosure Canada is one of the leaders when it comes to prosecute people living with HIV. Conviction rates are high. People are usually charged with aggravated sexual assault. While some countries have HIV specific laws to criminalize HIV non-disclosure, exposure or transmission. That is not the case in Canada. In Canada, we use general provisions of the criminal code to prosecute people living with HIV. In particular we use the law of sexual assault. And I will explain why.

The Law of Sexual Assault In Canada, sex without consent is a crime. In Canadian criminal law, there is no consent in case of: Force Threat, fear Fraud Exercise of authority Inducement by abusing a position of trust, power or authority etc.…(section 265 (3) (c) of the Criminal Code & 273.1)

HIV and Sexual Assault Law According to the Supreme Court of Canada, HIV non-disclosure amounts to fraud vitiating consent, and thus transforms consensual sex into a (sexual) assault, when: there is a “significant risk of serious bodily harm” (i.e. a realistic possibility of HIV transmission) and the individual would not have consented to sex had he/she known of his/her sexual partner’s HIV status. Exposing a person to a “significant risk of HIV transmission” endangers life = aggravated (sexual) assault Something interesting to note is that this expanded interpretation of fraud (traditionnally limited to fraud related to the nature of the sexual activity or to the person) has only been applied to HIV – except in one case of unwanted pregnancy and very few cases of other STIs. Our efforts to combat HIV criminalization have traditionally focused on obtaining a strict interpretation of the notion of a significant risk of transmission based on best available medical evidence. (ex. people should not be prosecuted if they used a condom or had an undetectable viral load because there is not significant risk of transmission). We have also denounced the negative impact of HIV criminalization on people living with HIV and public health more generally. But soon we realized that these arguments would not be sufficient if we wanted to challenge some of underlying causes of HIV criminalization, including the idea that HIV criminalization is an effective tool to protect women and to promote equality and sexual autonomy, as suggest by crown prosecutors, and start questioning the association between HIV non-disclsure and sexual assault.

HIV criminalization and women HIV criminalization does not protect women against gender based inequalities, violence or HIV transmission. We started to look at the impact of HIV criminalization on women living with HIV and it became quite clear, especially when looking at cases against women living with HIV in Canada that instead of protecting women from HIV, gender-based violence or inequality, HIV criminalization is putting women living with HIV — especially those in abusive relationships — at increased risk of violence, abuse and prosecution. It also became quite clear that it does not make sense to associate HIV non-disclosure with sexual assault. When a person does not disclose they have HIV, it is usually not about asserting force over another person in order to gain sexual gratification (like in “traditional” cases of sexual assault), but rather the result of fear of violence or other harm, rejection or denial – this is true for both women living with HIV and men living with HIV although exceptions exist of course. As of today, at least 17 women living with HIV have been prosecuted for HIV non-disclosure in Canada. Most of them were already living on the margins, already facing a greater risk of acquiring HIV and making it even more challenging to disclose their status. Some of those women are indigenous; some are survivors of sexual or other violence. Many were and are living in poverty or with little income security or have precarious immigration status. HIV criminalization does not help women, it puts those already in the margins at increased risk of harm.  In 2012, we released a documentary featuring 4 women living with HIV to talk about the impact of HIV criminalization on their life and challenge the public’s misconception about HIV criminalization and disclosure. the film is entitled “Positive Women: Exposing Injustice” it is available online for free

Mobilizing feminists! Feminist dialogue: April 2014 Using the law of sex. ass. in cases of HIV non-disclosure is a poor fit, it contributes to a strict application of the criminal law against PHAs, and it may ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence. Consent: HIV non-disclosure and sexual assault – a 28 mn documentary. Building on the success of Positive women and because we knew advocacy efforts opposing the overly broad criminalization of HIV non-disclosure had to address the use of sexual assault law and that such efforts had to go alongside feminist allies, we convened in 2014 a grounbreaking feminist dialogue on HIV criminalization in Toronto including feminist legal scholars, activists, women living with HIV, women’s rights advocates and lawyers. It was the first time we had such a cross-sector conversation on HIV criminalization in Canada. The major conclusions were that using the law of sex. ass. in cases of HIV non-disclosure is a poor fit, it contributes to a strict application of the criminal law against PHAs, and it may ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence. To spur the discussion and share participant’s analysis, we did another documentary called “consent: HIV non-disclosure and sexual assault law” that we are currently promoting across the country. I believe that building alliances with feminists has been one of our major recent success and that it can make a real different in Canada especially when engaging with policy makers and crown prosecutors. Thank you

Thank you! Canadian HIV/AIDS Legal Network: www.aidslaw.ca Positive women : Exposing Injustice www.positivewomenthemovie.org Consent: HIV non disclosure and sexual assault law www.consentfilm.org Cécile Kazatchkine ckazatchkine@aidslaw.ca (+1) 416 595 1666 (ext. 231)