Opinion: Has Supreme Court criminalized HIV?Published on Wednesday, 21 October 2015 09:35
People living with the virus can be charged with sexual assault even when there is no risk of transmission BY RICHARD ELLIOTT AND PETER MCKNIGHT, SPECIAL TO THE VANCOUVER SUN You might find this hard to believe, but no man in Canada ever raped his wife until little more than 30 years ago. That’s because according to Canadian law, a man couldn’t rape his wife.
As part of their marital obligations, wives were expected to be sexually available, always and everywhere, to their husbands. And that’s not all: If a woman were sexually assaulted, she was expected to raise an immediate “hue and cry.” Any delay in reporting the assault had a negative impact on her credibility. These were not the prejudices of individual judges. They were the laws of the land.
As a result, advocates for women’s equality fought a long battle to reform the legal definition of consent to sexual activity. The battle focused on ensuring that women did not lose their power to consent to or refuse sex by virtue of marriage and that courts could not assume that a woman consented to sex because of the way she dressed, whether she put up a struggle in the moment, or reported immediately after an assault. And they won that incredibly important battle. Today, courts apply a robust concept of consent — the voluntary agreement to participate in sexual activity.
This victory has been a crucial step forward in advancing the sexual autonomy of women, although the degree to which the criminal justice system holds perpetrators of sexual violence to account remains woefully inadequate. But there have been unintended consequences. As prosecutors deployed sexual assault charges in a novel context, the new and improved law of consent to sex produced a most unfortunate effect: Many Canadians living with HIV have been charged with and convicted of aggravated sexual assault — the most serious form of sexual assault, usually reserved for violent assaults that leave the victim with lifelong disabilities — for not disclosing their HIV-positive status to sexual partners.
HIV non-disclosure is very distinct from “traditional” sexual assault, yet convictions have been entered even if the HIV-positive person did not intend to transmit the virus, even if his or her partner did not become infected and, as we have seen in too many cases, even in instances where there was zero or virtually no risk of transmission at all. Not revealing one’s HIV-positive status has been the basis for conviction on the theory that the HIV-negative partner did not consent to having sex with someone who was living with HIV.
And in a troubling pair of decisions in 2012, the Supreme Court of Canada affirmed this basic reasoning: It held that a person living with HIV must disclose that status if there is a “realistic possibility of transmission” of the virus in order for a partner’s consent to sex to be considered legally valid. While the Court purported to caution that the law should not extend to criminalizing small risks, it went on to do precisely that in its approach to defining a “realistic possibility” of transmission. As a result, at least some prosecutors have laid charges in an even wider range of cases than before the 2012 decisions.
This prompted dozens of Canada’s leading scientific experts on HIV to publish a consensus statement last year expressing their concern at the criminal justice system’s disregard for the evolving scientific evidence regarding HIV transmission risks. This broad application of sexual assault law, resting on this legal definition of what is required for valid consent to sex, will do nothing to prevent the transmission of HIV. On the contrary, it might very well have the opposite effect in that it might discourage people from getting tested and treated.
And since those who are effectively treated with antiretroviral drugs are less infectious — in fact, virtually non-infectious if they have an “undetectable” viral load — it might lead to a higher, rather than a lower, incidence and prevalence of HIV infection. Ironically, the law might have the greatest negative impact on those it was designed to protect: Women, especially women in abusive or dependent relationships who can’t control whether their partners use condoms and who might face violent reactions if they reveal their HIV status.
The result is a growing number of feminist commentators and activists who are concerned not only about the implications for people living with HIV (including women, of course), but also for damage to the law of sexual assault more broadly. Clearly, the blunt instrument of the law is incapable of dealing with such a delicate problem as HIV exposure (and sexual health more generally), and it has done little to stem rape culture and violence against women. For HIV prevention, there are many non-legal alternatives, including tried and true prevention programs and newer treatment-based transmission reductions.
If there is a concern about “non-disclosure”, there are also alternatives. A public health approach, for example, seeks to understand why some people do not always disclose their HIV-status or take preventive precautions and offers counselling, education and support. If that doesn’t work, public health officials can take a number of steps, from issuing treatment orders, to prohibiting certain behaviours, and even detention. (At the more coercive end, such interventions still raise concerns about due process and equality; we do not suggest they are without concern, but they offer at least a more individuated, graduated approach.) And while the Supreme Court has had its say on the law, it is not the last word.
Rather, the law can still be reformed, and police and prosecutors can choose not to charge people except in the most serious cases, such as those rare cases involving alleged intentional transmission of HIV. Both the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the Global Commission on HIV and the Law have advocated taking this more restrained approach, and jurisdictions such as England and Scotland have developed guidelines for prosecutors limiting the use of criminal charges with respect to HIV. But any reform will come about not only by recommendation from international bodies, but through the engagement of members of the public, including those living with HIV.
So the Canadian HIV/AIDS Legal Network invites you to the premiere of the documentary film “Consent: HIV Non-Disclosure and Sexual Assault Law”, this Thursday October 22, at the Fletcher Challenge Theatre, 515 West Hastings Street.
The premiere will be followed by a panel discussion involving feminist scholars and those working to end violence against women, moderated by Peter McKnight. For more information on the issue, visit www.aidslaw.ca/criminalization or www.consentfilm.org.
Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network. Former Vancouver Sun columnist Peter McKnight is a member of the Legal Network’s Advocates Circle.
Source: The Vancouver Sun