How everyone living with HIV in Canada became a potential criminal

Jail & HIV

By Richard Elliott | August 8, 2017
Xtra Spark in partnership with the Canadian HIV/AIDS Legal Network
Image Credit: V Giridhar/Xtra

The executive director of the Canadian HIV/AIDS Legal Network looks at how the justice system in Canada, and the ‘court of public opinion,’ considers every person living with HIV a potential criminal. From the early days of the epidemic, to the beginning of legal rulings, to citizens demanding change– how did we get to where we are today?

I couldn’t believe it, and yet I shouldn’t have been surprised, given what I knew.

A friend of mine had just been informed that his HIV test was confirmed positive. And in that moment, as my friend’s life changed forever, the well-meaning doctor tried awkwardly to fill the silence — with some remarks about how my friend could be criminally charged if he didn’t disclose his status to every sexual partner.

As a lawyer well-versed in this area of law, I knew why the doctor was saying that. In a decision the year before (in September 1998), the Supreme Court of Canada had confirmed that someone with HIV could be prosecuted for aggravated assault for not disclosing to a sexual partner, at least in some circumstances.

I also knew that what the doctor was saying wasn’t entirely correct because precisely which circumstances trigger a legal duty to disclose HIV were still unclear then — and the issue remains contentious to this day, nearly 20 years later.

Legal issues aside, it’s wrong to greet newly diagnosed people with a threat that they could go to jail if they don’t disclose. But my friend’s experience is not unique. Many physicians and public health nurses are quick to inform people that they must disclose and use condoms (each and every time regardless of what the actual risks of transmission might be in a given instance) — and that if they don’t, there’s the risk of possible criminal charges.

And, of course, each time police issue a press release with the name and photo of someone accused of not disclosing, every person living with HIV is reminded that they live under the shadow of possible prosecution — and accompanying trial in the court of public opinion — that could be just one allegation away.

How did we reach the point where every person living with HIV is considered a potential criminal?

The early years of the epidemic

To answer that question, we need to go back to the early years of the HIV epidemic, and consider the combination of factors that contributed to the criminalization of HIV in the first place and how these factors have shaped its evolution since.

We start in North America in the early– to mid–1980s with the basic ingredients: A frightening new, and apparently communicable, disease that progresses rapidly, most often to death, with no known effective treatment and a lack of information — even active misinformation in some quarters — about how it spreads. The resulting fear of contagion sparks an understandable human impulse to contain, to distance, and to avoid harm, whether real or simply perceived.

Add several layers of inequality and misguided morality, because the epidemic is particularly identified in marginalized populations already subject to social disapproval and state surveillance. Gay sex, blamed early on for the spread of AIDS, had only been decriminalized a few years earlier in Canada (and remained a crime in many US states), and of course gay people were still widely stigmatized across the continent. Sex workers remain heavily stigmatized, and criminalized, to this day.

Infections were also appearing among people who inject drugs, who already carried the deep stigma of addiction and were also facing a deliberately intensified “war on drugs,”  a program of criminal prohibition and incarceration rooted in and reinforcing what was already a centuries-long history of racism against Black and Indigenous people in North America.

HIV therefore entered the public consciousness as a disease of perceived deviance, whether in relation to sex, drugs or both…

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