Criminalization of HIV non-disclosure
In many countries, including Canada, people living with HIV are being convicted of serious criminal offences and sentenced to significant time in prison for not disclosing their HIV status — even when there is no transmission and people have taken highly effective precautions that mean the risk of transmission is exceedingly small. In other cases, people are facing more serious, discriminatory charges simply because they have HIV — even when there is no risk of transmission.
- Canadian legislation states that people living with HIV have a duty to disclose their HIV status before engaging in sexual behaviours that pose a “realistic possibility” of transmitting HIV to another person.
- More than 170 people who allegedly failed to disclose their HIV status have been charged with criminal offences in Canada. There is no evidence that criminalization of HIV non-disclosure acts as a deterrent against participation in behaviours that can transmit HIV.
- Criminalization of HIV non-disclosure may have many negative consequences.
According to the Supreme Court of Canada’s 1998 decision in R vs Cuerrier, people living with HIV have a legal duty to disclose their HIV status before engaging in sexual relations that pose a “significant risk” of transmitting the virus. In 2012, this duty was made more precise in two decisions from the Supreme Court. Those rulings stated that there is duty to disclose before any sexual relations that pose a “realistic possibility” of transmission. In the decisions, the court ruled that individuals are not required to disclose their HIV status before having vaginal sex if a condom is used and the HIV-positive person has a “low” HIV viral load. In one of the decisions, the court considered an HIV viral load of 1,500 copies of the virus or fewer per millilitre of blood to be “low.” Whether 1,500 will become the standard for defining “low” is not clear. The court did not rule on disclosure before other types of sex, such as anal sex or oral sex.
Experts in HIV and criminal law have interpreted these decisions to mean that a person with HIV has a legal duty to disclose his or her HIV status before having:
- vaginal, frontal1 or anal sex without a condom, regardless of viral load
- vaginal, frontal or anal sex when viral load is higher than “low,” even when a condom is used
The Supreme Court only ruled on specific instances of vaginal sex, so it is unclear whether a person with a “low” viral load has a legal duty to disclose his or her HIV status in the following circumstances:
- having anal sex or frontal sex with a condom
- engaging in sexual acts that have a lower risk of transmission, such as oral sex without a condom
- sharing equipment to inject drugs (because this does pose a high risk of transmission, the Canadian HIV/AIDS Legal Network states that it is safest to assume that HIV-positive drug users also have a legal duty to disclose)
Criminal charges have been laid in Canada against people living with HIV because their behaviour posed a real or perceived risk for transmitting HIV, or the person’s positive status was considered a factor aggravating the seriousness of other charges. By the end of 2015 more than 170 people who allegedly failed to disclose their HIV status had been charged with criminal offences in Canada. Some people with HIV have been convicted of serious criminal offences and sentenced to significant time in prison for failing to disclose their HIV status before engaging in risky behaviours. People have been charged and convicted of various crimes, including assault, common nuisance, criminal negligence causing bodily harm, murder and attempted murder, and uttering threats.
One of the main arguments for criminal prosecution is that it will act as a deterrent against behaviours that pose a risk for transmitting HIV to others. However, there is no good evidence to support this argument. The other main argument for criminal prosecution is that it punishes the individual for the behaviour.
However, the criminalization of non-disclosure HIV may have negative consequences that should be considered. For example:
- Imprisoning people living with HIV may not prevent HIV transmission. In fact, prisons are environments in which high-risk behaviours are common and where HIV prevention measures are limited. This may lead to the transmission of HIV within prisons and then more broadly when people in prison return to their communities.
- Prevention interventions, such as education and risk-reduction counselling, may be better suited than criminalization for changing complex human behaviours related to sex and drug use.
- The fear of criminal prosecution may deter people from being tested. If someone doesn’t test for HIV, then they won’t know their HIV status and thus may believe that disclosure and/or onward transmission of HIV isn’t an issue for them.
- Extensive use of criminal prosecution could lead to a misperception by the public about the risk of transmission. This is especially relevant in cases where stiff sentences are imposed for behaviours associated with a negligible risk of transmission.
- The public attention given to criminal prosecutions may create a false sense of security that the law will protect people from HIV infection.
- Criminal prosecution can add to the stigma and discrimination faced by people with HIV. It places the burden of preventing HIV transmission on those living with HIV and portrays those living with HIV as potential criminals.
- Confidentiality of records can be breached when evidence is being gathered for a prosecution and the identity of the person living with HIV is revealed. This can lead to stigma and discrimination. It can also undermine trust in the healthcare system.
- Gender and power inequity can make the situation more complex. For example, some HIV-positive women may not be able to insist on condom use or may fear violence if they reveal their HIV status.
Across the country, advocates are responding to the increasing use of criminal prosecution. The Canadian HIV/AIDS Legal Network has produced HIV Disclosure and the Law: A Resource Kit for Service Providers to help front line workers and their clients make informed and empowered choices in the face of criminalization. The network has also partnered with European organizations and the Global Network of People Living with HIV (GNP+) to create a resource kit for advocates and lawyers to support people with HIV who are facing criminal charges.
In 2014, close to 80 Canadian experts endorsed a statement that the chance of transmitting HIV is low to zero for many types of sex and that a poor appreciation of this knowledge within the legal community has contributed to the overly broad use of criminal charges against people with HIV.
Useful Resources around HIV Criminalization:
HALCO – HIV AIDS LEGAL Clinic of Ontario http://www.halco.org/
- HIV disclosure: a legal guide for gay men in Canada (2013 May) www.halco.org/wp-content/uploads/2013/10/HIV_disclosure-legal_guide_for_gay_men_Canada-2013May-ENG.pdf
You can order print copies of HALCO’s HIV Criminalization guide from CATIE:
The Canadian HIV/AIDS Legal Network website includes many resources including:
- three information sheets on HIV and the criminal law in Canada: www.aidslaw.ca/site/criminal-law-and-hiv/.
- HIV Disclosure to Sexual Partners: Questions and Answers for Newcomers:
- English: www.aidslaw.ca/site/hiv-disclosure-to-sexual-partners-qa-for-newcomers/.
- French: www.aidslaw.ca/site/hiv-disclosure-to-sexual-partners-qa-for-newcomers/?lang=fr.
- Chinese: www.aidslaw.ca/site/discl-newcomers-qa-chinese/.
- Punjabi: www.aidslaw.ca/site/discl-newcomers-qa-punjabi/.
- Spanish: www.aidslaw.ca/site/discl-newcomers-qa-spanish/.
- two short videos in that explain that current state of the criminal law in Canada: www.aidslaw.ca/site/sex-criminal-law-and-hiv-non-disclosure/.
- a webinar that you can watch to get information on your rights and responsibilities under the criminal law in Canada: www.aidslaw.ca/site/criminalization-of-hiv-non-disclosure-in-canada-webinar/.
- HIV non-disclosure and criminal law: Implications of recent Supreme Court of Canada decisions for people living with HIV (2012): www.aidslaw.ca/site/hiv-non-disclosure-and-criminal-law-implications-of-recent-supreme-court-of-canada-decisions-for-people-living-with-hiv/.
- HIV non-disclosure and the criminal law: A summary of two recent decisions of the Supreme Court of Canada (2012): www.aidslaw.ca/site/hiv-non-disclosure-and-the-criminal-law-a-summary-of-two-recent-decisions-of-the-supreme-court-of-canada/.
- HIV non-disclosure and the criminal law: An analysis of two recent decisions of the Supreme Court of Canada (2012): www.aidslaw.ca/site/hiv-non-disclosure-and-the-criminal-law-an-analysis-of-two-recent-decisions-of-the-supreme-court-of-canada/.
- other HIV and criminal law information and publications: www.aidslaw.ca/site/publicationtopics/criminal-law/.
This information is about the criminal law, sex and HIV disclosure in Canada. Public health law also deals with HIV disclosure. Public Health laws are set by the provinces and territories, so you may also want to find out about public health law and HIV where you live. Our Public Health Law page has information about public health law in Ontario. If you are living with HIV in Ontario, you can contact us for free legal advice.
Criminalization of HIV Issues
The Supreme Court of Canada released its new approach to the criminalization of HIV non-disclosure on October 5, 2012. The R. v. Mabior decision is on the Court’s website: http://scc.lexum.org/en/2012/2012scc47/2012scc47.html
The decision is extremely disappointing and will have serious implications not only for people living with HIV in Canada, but also for public health, police practices and the Canadian criminal justice system.
HALCO was part of the coalition that intervened at the Supreme Court. The coalition released this statement regarding the Supreme Court’s approach to HIV non-disclosure:
- Statement (English) www.halco.org/wp-content/uploads/2012/10/Crim-SCC-2012Oct5-CoalitionStatement-Eng.pdf
For more information about the decisions and the criminalization of HIV non-disclosure, please visit the Canadian HIV/AIDS Legal Network’s website: www.aidslaw.ca/site/publicationtopics/criminal-law/.
Please see HALCO news Winter 2012 edition, page 5, for an article about the Supreme Court cases. TheIntervener Factum (written argument) is on the HALCO website: www.halco.org/wp-content/uploads/2012/03/Supreme_Court_Intervener_Factum-MabiorD.C.-2012-Feb.pdf.
Ontario Campaign for Prosecutorial Guidelines concerning HIV Non-Disclosure
Ontario Working Group on Criminal Law and HIV Exposure (CLHE) came together in 2007 to oppose the current use of the criminal in relation to HIV non-disclosure, and, to attempt to bring fairness and consistency to the law. People living with HIV, lawyers, activists, academics, and AIDS service organization staff are involved with CLHE. For information about Ontario Working Group on Criminal Law and HIV Exposure (CLHE), please visit: http://clhe.ca.
The CLHE Consultation on Prosecutorial Guidelines for Ontario Cases Involving Non-disclosure of Sexually Transmitted Infections: Community Report and Recommendations to the Attorney General of Ontario (June 2011) is available on our website: www.halco.org/wp-content/uploads/2011/11/CHLE_guidelines_report_2011.pdf
HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario (August 2011) provides a comprehensive discussion of the criminalization of HIV non-disclosure in Canada and is available on the Ontario HIV Treatment Network (OHTN) website: www.ohtn.on.ca/Documents/Publications/HIV%20non-disclosure%20and%20the%20criminal%20law.pdf