The criminalization of HIV non-disclosure has long been an issue for people living with HIV and their allies. Research shows that given the threat of prosecution, some people may choose not to test for HIV, increasing public health risk overall, an ironic outcome for laws purportedly created to protect and promote public health. Advocates- including researchers and scientists in BC, Canada, and all over the world are continuously at work to challenge laws that criminalize HIV, connecting their work through social media (#HIVisnotacrime) as well as other campaigns to educate and agitate for change.
Here in Canada, the Supreme Court of Canada’s 2012 Mabior decision states that PLHIV must disclose their status unless they both use a condom AND have a low viral load. Furthermore, no transmission need take place in order for person to be charged. Clearly, this is at odds with the science: 1) when used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV and 2) all the research and evidence which shows that an undetectable viral load means there is no risk of transmission of HIV (U=U).
Since the Supreme Court announced its decision, the Canadian HIV/AIDS Legal Network has been working to challenge it. And in October 2016, the Canadian Coalition to Reform HIV Criminalization was created, a group which includes PLHIV leaders (including those with lived experience of being criminalized), researchers, and legal and other advocates. Together they are a powerful voice that has been calling on the federal, provincial and territorial governments to take specific actions to end unjust criminal prosecutions against people living with HIV.
The BC Crown Counsel Policy Manual
In addition to challenges to criminal law and related efforts lobbying for change, another major focus of advocacy on this issue has been on efforts to ensure that the charge guidelines and policies by which crown counsels decide to lay charges for non-disclosure of HIV are evidence based. Here in BC, for many years the collective effort to influence prosecutorial guidelines have been led by Positive Living BC. Positive Living BC and allies were heartened by the election of the NDP/Greens not to mention the appointment of David Eby as BC’s Attorney General. Hopes were dashed, however, with the recent release (March 1st) -without community input – of the BC Crown Counsel Policy Manual; and specifically its Sex 2 policy which indicates how people living with HIV in BC may be charged in cases of non-disclosure.
The BC policy lays out how charges will be assessed, what evidence is required, and criteria for determining whether it is in the public interest to pursue them. There are various steps the Crown needs to complete before laying charges, and this includes a provision that any charges must be assessed by more than one Crown Counsel lawyer (which isn’t standard procedure). Should a Crown lawyer decide after an initial assessment that charges could stand, the case is referred to a Regional Crown Counsel (or equivalent). It is also referred to a Resource Crown Counsel on HIV before charge(s) are approved. This multiple step process is (in theory) a good one for people living with HIV, as it demands more than one legal opinion. Ideally the Resource Crown Counsel on HIV will be up to date on current scientific research on HIV transmission risk (such as U=U) and the latest case law- and will be able to provide evidence-informed opinion.
A recent case in BC illustrates how important it is that Crown be up to date. A man was charged with 12 counts of aggravated assault, even though his viral load was undetectable and therefore transmission risk to partners was negligible. He was publicly identified through the media and he and his family have suffered as a result. The Crown has decided charges will not be pursued. The man has since filed a human rights complaint.
Unfortunately, the new policy doesn’t explicitly mention the gold standard consensus statement Risk of sexual transmission of HIV from a person living with HIV who has an undetectable viral load which is endorsed by many internationally renowned scientists. This is something that Positive Living BC, PAN and allies have advocated for in their communication with government over the past few years. While the policy says evidentiary risk is required before charges may be approved, there are definitely concerns that the policy is too vague and that it does not provide enough guidance – particularly given this lack of consensus statement mention. It also contains insufficient / vague language around important risk considerations such as oral sex, anal sex and condom use during anal sex. While the Crown writers may say that citing specific scientific evidence could put the policy out of date should new evidence come to light, it could have been worded to provide clarity and room for new evidence, should this happen.
A Roadmap for Change: Charting the Future of HIV Criminalization Advocacy
An Ancillary event at the recent Canadian Association for HIV Research (CAHR) conference in Vancouver provided a forum for discussing the current picture of criminalization of HIV and brought together researchers, PLHIV, legal experts and advocates from across Canada to talk about the history of resistance and directions for the future. A Roadmap for Change: Charting the Future of HIV Criminalization Advocacy was hosted by the Canadian HIV/AIDS Legal Network and Positive Living BC (PLBC). All the presenters were great, and I was struck in particular by a few given where we are at right now. (Ed. note: we’ve done our best to gather all the resources from the event.) Neil Self, Chair of PLBC, has worked tirelessly on this issue over the years and spoke at the event, speaking specifically to the BC Crown Counsel’s Sex 2 policy. Neil commented, “BC had an opportunity to take the national lead and develop sound prosecutorial guidelines that are based on scientific evidence and sound public health policy and unfortunately, they blew it. The new charge guidelines do not provide certainty for people living with HIV as they lack a clear standard (i.e. undetectable or <100 copies per mL) as to when people will not be charged and instead uses undefined terms such as “realistic possibility of transmission” and “the latest medical evidence”.
Another presenter at the event was Richard Elliott, Executive Director of the HIV/AIDS Legal Network. In an opinion piece published in the Vancouver Sun (A Chance to Correct injustice- Don’t Squander It) he states that the BC policy “leaves the door wide open to a wide array of unjust prosecutions at odds with the available science, with human rights and with good public health practice.”
Valerie Nicholson spoke about issues for women including how HIV disclosure can impact safety and violence in relationships. It should be noted that the BC Crown Counsel’s new charge guidelines and Sex 2 policy, also fail to speak to or acknowledge specific vulnerable populations that may be at increased risk of violence because of their HIV status, such as women living with HIV.
In addition to Neil, Richard and Val, hugely impactful for me as an attendee at this event was hearing first hand from Chad Clarke about the devastating impact these unjust prosecutions can have on individuals. Chad was himself arrested for aggravated sexual assault, denied bail twice, pled guilty to avoid a longer sentence, was sent to prison where he was placed in protective custody, and put on the national sex offender registry – in his words, a devastating “lifetime sentence”. Chad is a powerful advocate and speaker on this issue, and his courage is tremendous.
Moving forward, it is clear that so much more work needs to be done, both in terms of pressuring the provincial government to have prosecutorial guidelines that are evidence based, as well as federally to challenge criminalization. We all need to continue to work to press for criminal justice law reform, as promised by Federal Minister of Justice Jodi Wilson-Raybould on World AIDS Day 2017. To learn how you can become involved and add your voice, I encourage you to check out the Canadian Coalition to Reform HIV Criminalization.
Questions? Feedback? Get in touch!
Jennifer Evin Jones, Executive Director, [email protected]
Presentations from CAHR 2018 Ancillary event April 26, A Roadmap for Change: Charting the Future of HIV Criminalization Advocacy
HIV, the criminal law and its impact in Canada. Nicholas Caivano, Policy Analyst, Canadian HIV/AIDS Legal Network
The Criminalization of HIV in Canada:Key Trends and Patterns. Nicholas Caivano, Policy Analyst, Canadian HIV/AIDS Legal Network
Resisting unjust HIV Criminalization: Recent developments and current challenges. Richard Elliott, Executive Director, Canadian HIV/AIDS Legal Network
Stories from the Front Line. Valerie Nicholson, the Canadian Coalition to Reform HIV Criminalization
Resources for lawyers and advocates (HIV/AIDS Legal Network)
Women and the Criminalization of HIV Non-Disclosure (HIV/AIDS Legal Network)
Evidence-Based Resources on the Criminalization of HIV and Women (Gender and Sexual Health Initiative)