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Safe sex should be lawful, says the Canadian HIV/AIDS Legal Network’s executive director

By Richard Elliott

Right now, people living with HIV in Canada can face years in prison and a lifetime “sex offender” designation if they don’t disclose their status to a sexual partner — even when there is little to no risk of transmission.

This cruel and unusual punishment is based largely on a 1998 Supreme Court of Canada decision saying that if there is a “significant risk” of transmission, someone who knows they have HIV must disclose that fact — and if they don’t, their sexual partner’s consent has been obtained by “fraud.” This, in turn, means they can be charged with aggravated sexual assault.

Too often, prosecutors and courts have interpreted this standard very broadly, prosecuting and convicting people living with HIV even in circumstances where there was not only no transmission of the virus, but negligible or even zero risk of transmission in the first place. A single consensual sexual act posing little or no risk of transmission is treated the same as rape in Canada’s courtrooms, and our rate of prosecution for this charge is among the highest in the world.

This is an infringement upon the human rights of people living with HIV, and over the past few decades, we’ve seen plenty of unjust prosecutions. In one particularly egregious case, a woman, herself a survivor of sexual violence, was prosecuted and registered as a sex offender because when she left her abusive partner and had him charged with assault, he retaliated by having her charged for HIV non-disclosure.

This criminal approach to HIV non-disclosure is rooted in stigma and misperceptions, in particular an inflated perception about the actual risk of transmitting the virus. HIV is difficult to transmit, yet people have an exaggerated sense of its risk, which has fuelled a fear of people living with HIV.

The result is punitive laws that are contrary to the science of HIV. In 2018, dozens of the world’s leading scientists and the leading scientific organizations in the field of HIV research published a peer-reviewed, international Expert Consensus Statement about HIV transmission risks in various circumstances, based on a thorough review of all the available literature.

Among other things, the science confirms that when a condom is correctly used – meaning it is worn throughout the sex act and doesn’t break – it is 100 percent effective in preventing HIV transmission. The science is also clear that someone who has a “suppressed viral load” – say, from effective HIV treatment — cannot transmit HIV sexually. Yet it has only been recently that people with suppressed viral loads have been spared prosecution. And people who use condoms are still being prosecuted and convicted for not revealing their HIV status.

In addition to being unjust and unscientific, HIV criminalization undermines public health. The laws deter some people from getting tested because it’s legally safer not to know their status. And criminalization deepens the stigma surrounding HIV, which of course makes it all the riskier and more difficult to disclose.

HIV is difficult to transmit, yet people have an exaggerated sense of its risk, which has fuelled a fear of people living with HIV.

We should not be criminalizing people who practice safe sex. Instead, we need to limit any use of the criminal law to the (extraordinarily rare) cases of actual, intentional transmission of HIV.

Thankfully, as a result of significant community advocacy, things are finally changing.

In June 2019, the House of Commons Standing Committee on Justice and Human Rights made several important recommendations to limit the use of the criminal law against people living with HIV, including changing the Criminal Code to stop the use of sexual assault charges to deal with cases of alleged HIV non-disclosure.

During the recent federal election, all the major political parties told us they recognized the need to limit the over-criminalization of HIV non-disclosure.

Today, we urge the newly elected government to follow through and reform the Criminal Code, in consultation with HIV community members and experts, to end HIV criminalization. It’s past time to end this ongoing injustice.

CORRECTION: A previous version of this piece stated that the Expert Consensus Statement was issued in 2019, when it was actually issued in 2018. This version has been corrected.

This column first appeared in Broadview’s March 2020 issue with the title “Safe sex should be lawful.”

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