Is It a Crime to be HIV+?

Alisha Ostberg Blog, criminilization, harm reduction, human rights, living with HIV

This blog was written and created by Chris McBain, Education Coordinator at SafeLink Alberta. For more resources on HIV non-disclosure, visit the HIV Legal Network.

The current HIV non-disclosure laws (HNDLs) in Canada have been controversial and debated for several years. On the one hand, these laws are intended to protect public health by ensuring that individuals aware of their HIV-positive status disclose their condition to their sexual partners. On the other hand, these laws have been criticized for criminalizing HIV-positive individuals who may not have intended to harm their partners.

Under Canadian law, individuals aware that they have HIV must disclose their condition to their sexual partners before engaging in any sexual activity that poses a “realistic possibility” of transmission. Failure to do so can result in criminal charges, with potential penalties ranging from a fine to life imprisonment.

While the intent of these laws may be laudable, the practical effects have been less clear. Critics argue that the laws are overly punitive and discourage individuals from getting tested for HIV or seeking treatment if they test positive. Moreover, they argue that the laws may disproportionately impact marginalized communities, such as sex workers, at greater risk of HIV transmission.

  • 56% of all HND convictions had NO transmission of HIV.
  • 70% of convictions served federal time of 2 years or more (62% served more than two years).
  • Persons from various BIPOC communities are disproportionately represented in convictions (about 3 out of 4 convictions).
  • If the conviction is given to newcomers, they are immediately deported.
  • It’s almost a given that someone will place on the sexual offender list.
  • HNDL is a crime of aggravated sexual assault (meaning it was violent, maiming, wounding, disfiguring, etc., as in cases of sexual assault).
  • HNDL says non-disclosure is fraud, vitiating consent – meaning the non-disclosure is also fraud.

Proponents of the laws, however, argue that they are necessary to protect public health and prevent the spread of HIV. They point out that HIV can be a life-threatening condition and that individuals who are aware of their status have a responsibility to take steps to prevent transmission. Moreover, they argue that the laws are not intended to punish individuals who disclose their status and take appropriate precautions but rather those who knowingly put others at risk. The current facts about HIV criminalization would say otherwise, though.

The emotional impact of these laws is difficult to overstate. For individuals living with HIV, the fear of prosecution can be a constant source of stress and anxiety. Even those who have disclosed their status to their sexual partners may worry that they will be accused of non-disclosure if their partner later tests positive for HIV. Moreover, the stigma surrounding HIV can be a significant barrier to disclosure, as individuals may fear rejection or discrimination if they reveal their status.

At the same time, it is important to recognize the perspectives of those affected by non-disclosure. For individuals who have contracted HIV as a result of a partner’s non-disclosure, the emotional impact can be devastating. They may feel betrayed, angry, or violated and struggle with shame or guilt. For these individuals, the criminalization of non-disclosure can be seen as a form of justice or, at the very least, a recognition of the harm done to them. Though the justice system is not set up as a healing mechanism – the law is often a system of criminalizing the poor and racialized.

While the intent of the laws is clear, their practical effects are less so, and there are valid concerns on both sides of the debate. At the heart of this debate, however, is a shared desire to prevent the spread of HIV and protect the health and well-being of all Canadians. The Federal Government has spent many months consulting with various communities – especially from PWLHA – and has asked how they think the laws should change. This period of consultation has ended, and a bill is being drafted to amend the current laws.

The proposed changes advocated for are as follows:

  • Stop treating non-disclosure as sexual assault.
  • Limit prosecutions to intentional fraud vitiating consent and to where transmission has occurred.
  • Limit prosecution to actual transmissions and not risky exposure.
  • No prosecutions where precautions have been taken (some who are positive but wore a condom have been convicted);
  • No more deportations as a result of HND.
  • Create new offences specific to STTBI-related offences.

Taking up the social justice mantle on this issue seems daunting, but being an advocate is easier than you think. You can email your MP urging them to vote for these proposed changes. You can learn about the U=U campaign – tell your friends about it and correct people when they make stigmatizing remarks. Finally, you can stay current by following credible sources about HIV and the law.