People living with HIV in Canada can be charged with aggravated sexual
assault and be registered as sexual offenders if they do not disclose their HIV
status, but many HIV-positive women have little knowledge of this law,
according to a recent qualitative study. The law contributes to increased HIV-related
stigma, social injustices and vulnerability to violence for women living with HIV,
argue Dr Saara Greene and colleagues.
Forty-eight women
took part in seven arts-based workshops which each took place over a four-day
period. Each workshop included an education session regarding the legal
implications of non-disclosure, followed by a focus group discussion that
allowed women to share thoughts, feelings and concerns regarding the law.
Canada is one of many countries
that continues to criminalise non-disclosure of HIV-positive status in sexual
acts between consenting individuals. Transmission of the virus does not need to
occur: a person can be prosecuted for exposure to the virus in the absence of
transmission.
In 2012, the Supreme Court
of Canada clarified its position on HIV transmission, ruling that people living
with HIV are legally required to disclose their status to sexual partners
before engaging in sexual activities that pose a ‘realistic possibility of
transmission’. According to the Court, two combined factors could be used as a
defense against this realistic possibility of transmission: a low plasma viral
load (under 1500 copies/ml) and the
use of a condom.
Thus, the law does not acknowledge biomedical advances that conclusively
show transmission is impossible if the infected individual is virally
suppressed (see our
factsheet on undetectable viral load and transmission). The ruling leaves
room for those engaging in condomless sex with an undetectable viral load to be
prosecuted. In Canada, a charge of aggravated sexual assault could carry a
maximum sentence of life imprisonment and registration on the sex offender
registry.
A more recent 2018 federal directive issued by the attorney general
states that a person living with HIV who has maintained a suppressed
viral load (under 200 copies/ml of blood) should not be prosecuted, because
there is no realistic possibility of transmission. However, this directive only applies in Canada’s three territories and not in the provinces where the vast majority of the population live. Advocates are calling on the provinces to issue similar directives.
The workshops were
carried out in 2016 and 2017, in three Canadian provinces (Ontario, Saskatchewan and British
Columbia). The median age of participants was 47 (range: 30-59); the majority
of women were Indigenous (60%), with only a small percentage of white women
(8%). It was important for minority women to be oversampled as HIV prevalence is
nearly three times higher in Indigenous peoples across Canada, with high rates
of HIV diagnoses occurring in young Indigenous women. Additionally, 42% of
women charged with HIV non-disclosure are Indigenous.
Most women were
heterosexual (73%), cisgender (94%) and born in Canada (79%). One-third of
women were single, with 29% reporting a common-law relationship.
Analysis of the focus
group discussions revealed the following themes.
Confusion and concerns regarding the law
Overall, the
education sessions revealed that women were largely unfamiliar with and
poorly informed about laws pertaining to non-disclosure. Questions and concerns
were related to legal implications (such as whether charges could be brought
against them for exposure in the absence of transmission or for sexual
interactions several years ago). Several women asked what it meant to have a
low viral load.
Social and legal injustice
Women felt that the law perpetuates existing injustices in the lives of diagnosed
HIV-positive women. Thus, factors such as stigma, sexism, racism, colonialism
and a lack of education might put those already disadvantaged at a higher risk
of being criminalised.
“Like even this isn’t accessible
or something understandable for some of my people because we have literacy
issues. Some of our people, they left residential school at grade 6 and grade
8…”
(Jaqueline, Saskatchewan, speaking about a legal factsheet given to participants)
A contradiction inherent in HIV non-disclosure criminalisation law is
that while individuals who are unaware of their HIV status and have a high
viral load are more likely to unknowingly infect others, these individuals
cannot be prosecuted under Canadian law as intent cannot be proven. The women expressed
that the law unjustly targets those who are diagnosed:
“…When I was first diagnosed, I had a higher viral
load because I wasn’t being treated. And so actually the silent people who
don’t know are more at risk of passing it on. So, who is this [law] even
protecting? We are the least likely to pass it on.” (Lori, British
Columbia)
As a result of assault laws being used in non-disclosure cases, a common
sentiment expressed by women living with HIV was that they were carrying a
biological weapon. Thus, HIV stigma was internalised, as a result of the legal
system depicting women as capable of inflicting serious harm on their partners:
“…If I was going to go over there and stab
[participant] with a knife, that’s aggravated assault. So, they’re taking that
knife away and using HIV. I may not have given it to her. So, it’s like the
knife never even touched her or the knife wasn’t used. I’m still charged.” (Rachelle, British
Columbia)
Sexual surveillance
Participants
expressed a sense that they were under surveillance by the criminal justice
system when it came to their sex lives. In order to prove innocence, women
would need to provide evidence of both a low viral load and condom use, or of
disclosure.
The researchers
labelled this an ‘intimate injustice’, with HIV-positive women needing to prove
their innocence within an inherently unjust and oppressive system. The lengths
that women would have to go through to prove this innocence is reflected here:
“So how many
people do you have in that room? You have the lawyer that’s witnessing the
paper that you’re signing that you’ve disclosed. You have the doctor to say,
‘Yeah, you’re under a viral load’. You’ve got the forensic scientist there
getting any evidence. You know, everybody is watching.” (Lilian, British Columbia)
A common question related
to undetectability was:
‘So when I look at it, I’m undetectable. So, I cannot
transmit HIV to who I’m going to have sex with. So why is it any of their
business that I have it when I’m undetectable?’
Another common question
was how to prove that a condom was used or that disclosure had occurred after a
sexual encounter had taken place. It could come down to a ‘he said, she said’ situation,
with the HIV-positive woman needing some form of conclusive proof that she had
used a condom or disclosed her status prior to engaging in sexual contact.
“Okay, so say I had a sexual partner. I just met this
guy. And my CD4 count is 880. I’m undetectable. But I’ve got to tell him before
we get into bed. Do I need to make him sign a document and lock it up and have
it witnessed by the neighbor?” (Zainab, Ontario)
Vulnerability to violence
Non-disclosure laws
may place women at greater risk for violence. As many as 80% of Canadian women
living with HIV have experienced violence in adulthood and the requirement to disclose
HIV status to sexual partners could increase the likelihood of intimate partner
violence by placing women in a vulnerable position.
Women expressed that
they do not always have control over when or how sex occurs with their
partners; this negates their agency when it comes to negotiating condom use or disclosing
their HIV status.
There was also the
question of how disclosure applied in cases of domestic abuse and rape. The law
would require women to disclose to abusive partners, placing them at risk of
even more violence. The troubling nature of this was expressed in this quote:
“I was raped
by three [people] in [Canadian city]. They broke into my home and they held me
prisoner for 24 hours and beat me and raped me. And if I had told him I was HIV
positive, I would have been dead. I know it. So where does that fit in the
picture?” (Julie, British
Columbia)
Additionally, the law
could be used against HIV-positive women by vindictive partners wishing to
‘punish’ them. Many women had been threatened with charges for non-disclosure
by disgruntled partners:
“Could they
turn around and even if you’re honest and told them, then … they lied and said,
‘Well, I caught it from her’, or him. And they go to the police and get them
charged, just out to be spiteful and mean.” (Catherine, Saskatchewan)
Concerns over violence were particularly salient for Indigenous women:
“When you include the Indigenous community and the
numbers and statistics there, like we’re already like 10 times the rate of
being gone missing, murdered and, you know, facing violence every day. So, when
you throw in … you know, HIV, you know, like it just becomes sometimes not even
safe. A lot of people stay in very vulnerable situations because of this law…”
(Jaqueline, Saskatchewan)
Conclusion
The researchers
conclude that for women living with HIV in Canada, non-disclosure laws can lead
to unjust victimisation, perpetuating legal and social injustices. Many of the
women did not have the necessary legal knowledge to fully understand the
implications of their sexual behaviour to begin with. HIV-related stigma has
become legally entrenched and results in women who are anxious about sexual
encounters and fearful that they will need to find ways of proving their
innocence. Non-disclosure laws may also lead to increased violence against
women.
When combined with
factors such as sexism, racism, colonialism and violence against women, HIV
criminalisation results in continued oppression and thus, advocacy for legal
reform is necessary and urgent. The recent federal directive is a step in the
right direction but it will still take some time for this to filter down to provincial
police and prosecutors.
