Canada in a landmark move is to stop prosecuting people who do not disclose their HIV status before sleeping with a partner, the government recognise that someone who has HIV and who is taking the proper medication cannot transmit the virus.
Until now, a person could be charged with aggravated sexual assault one of the most serious crimes under Canadian law for not disclosing their HIV status before sex in Ontario, and given a lifetime on the sex offender registry, even if their partner didn’t contract HIV. An HIV-positive person would have to both wear a condom and have a suppressed viral load to avoid prosecution for non-disclosure.
The federal Department of Justice report says that criminal law should still apply to HIV non-disclosure in cases where someone is reckless or intentional in spreading HIV. Alex McClelland, a researcher at Concordia and another signatory to the consensus statement, says that of all the Canadians he has interviewed who have been charged for non-disclosure, none fit the profile of an intentional predator.
More often, he says, the law falls most heavily on people who are vulnerable and trying their best to protect their partners. One of his interview subjects, he says, is a transgender sex worker with an undetectable viral load who was sexually assaulted at knifepoint, only to be prosecuted for not disclosing her status to the man who assaulted her.
Another straight Black man — a group disproportionately targeted by the law — knew his undetectable status made it impossible to transmit the virus, so he did not disclose. His girlfriend went to the police but later retracted her accusation after she realized what had happened. It was too late, and he ended up in prison.
McClelland says he would like to see criminal law removed from dealing with HIV altogether, but admits there is a considerable debate even among HIV activists about how exactly to move forward.
The Ontario ministries of health and justice say they will hold a roundtable in 2018 to listen to HIV activists and health officials to hash out the details. Tim McCaskell, a veteran activist, says the most important thing is that governments are finally listening.
“This is the best news of the day,” he says. “It’s been such a Sisyphean struggle. We’ve been pushing and pushing on this, and the victories have been few and far between.”
Though McCaskell welcomes the changes, he wishes the governments hadn’t taken so long to catch up.
“I wish they could have done this 10 years ago when they should have,” he says. “It would have saved a lot of grief, and a lot of infections too.”
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