A quick summer update on the HIV criminalization front…
BC’s Prosecutorial Guidelines
As previously reported, on April 16th, 2019, BC Prosecution Services issued revised prosecutorial guidelines (the revised “Sex 2” policy). Encouragingly, the guidelines state clearly that there will be no prosecution for suppressed viral load (i.e., under 200 copies/ml) for at least 4 months; it also states that there will be no prosecution for just oral sex (but with the caveat ‘if no other risk factors present’). However, very disappointingly, they fail to state clearly that there will be no prosecution against people who use condoms. Rather, it states that a public interest factor that may weigh against prosecution is if a person living with HIV correctly used a condom during a single act of vaginal or anal sex and HIV was not transmitted.
Since that time, activity has taken place on a number of fronts. In May the Canadian HIV/AIDS Legal Network (CHLN) organized a large virtual meeting with representatives from PAN, BC Civil Liberties Association (BCCLA), Positive Living BC, UBC and the Centre for Gender and Health Equity, and leading researchers. It was agreed that advocacy should continue for better prosecutorial policy in BC, with some key issues of concern being (1) a position of no prosecution, full stop, in case of use of condom (or other latex or polyurethane barrier), and (2) more recognition in policy of gender and other power imbalances often at play.
In June a powerful Call to Action: Gendered Analysis of Criminalization of HIV Non-disclosure was issued by the Women, ART, and the Criminalization of HIV (WATCH) and Canadian HIV Women’s Sexual and Reproductive Health Cohort Study (CHIWOS) studies, and their allies. Postcards were developed for the BC Attorney General which very eloquently reflect collective concerns about the new prosecutorial guidelines:
The Sex 2 guidelines disregard evidence proving that an intact condom is 100% effective at preventing HIV transmission, while also dismissing the danger that condom negotiation and disclosure pose for women living with HIV – particularly those in dependent, violent and/or non-consensual relationships.
Although these guidelines confirm the prevention benefits of an undetectable viral load, they lack recognition of the high rates of sexual violence, poverty, and discrimination that women in BC endure, which influences their retention within the HIV care cascade., their ability to consent to sex, and their capacity to safely disclose their HIV status.
We encourage PAN members to consider signing the call to action and to making these postcards available in your communities.
Release of Federal Justice Committee Report “Criminalization of HIV Non-Disclosure in Canada”
Another significant development occurred on June 17th when the House of Commons Standing Committee of Justice and Human Rights released its report “The Criminalization of HIV Non-Disclosure in Canada.” The Committee invited witnesses and received submissions from many community-based organizations, including the Community Based Research Centre (CBRC), the Ontario AIDS Network, Pivot Legal Society, the Canadian Coalition to Reform HIV Criminalization, and the Canadian HIV/AIDS Legal Network (CHLN), to name but a few.
There is much that is extremely positive in the report’s recommendations – see Chapter 5. One notable recommendation is to call for the end of the use of sexual assault laws, when it comes to cases of alleged HIV non-disclosure. The Committee agrees with witnesses that the use of sexual assault provisions to deal with HIV non-disclosure is overly punitive, contributes to the stigmatization and discrimination against people living with HIV, and acts as a significant impediment to the attainment of our public health objectives. The consequences of such a conviction are too harsh and the use of sexual assault provisions to deal with consensual sexual activities is simply not appropriate.
Another powerful reform is to limit the criminalization of HIV to actual transmission only. The Committee recommends That the Minister of Justice and Attorney General of Canada immediately establish a federal-provincial working group to develop a common prosecutorial directive to be in effect across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission of the virus.
The Committee also addresses concerns for persons living with HIV who have already had their lives turned upside down due to criminalization. The Committee acknowledges that because of the current approach, some individuals who have been convicted of HIV non-disclosure in Canada still suffer unjust consequences of this conviction, for example, as a result of the publicity related to their case, their criminal record or the fact of being registered in the National Sex Offender Registry. The Committee agrees with the witnesses who called for a mechanism to review previous convictions of HIV non‑disclosure.
For an excellent initial analysis of the recommendations contained in the report, check out the formal response of the CHLN to the Justice Committee’s report. The CHLN calls for limiting criminal prosecution to cases of intentional transmission only, noting that “Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.”
There is unfortunately one alarming recommendation in the report. CHLN certainly speaks for PAN and many other organizations, when it strongly disagrees with the recommendation to extend the criminal law to other infectious diseases. As CHLN states: “We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.”
CHLN concludes by calling for actual law reform. No doubt this is something that we will be collectively pursuing and calling on the federal government to enact, after the October election.
New resource from PAN
PAN has created a new Fact sheet “What Do You Need to Know? 2019 Update on HIV Criminalization in BC” with front line workers, peer navigators and other persons who work directly with PLHIV in mind. We wanted to provide an accurate, accessibly written summary of both applicable law, as well as the latest information about BC’s prosecutorial guidelines. Please share in your communities.
Our HIV and the Law page
Canadian HIV/AIDS Legal Network HIV Criminalization page
Questions? Feedback? Get in touch!
Jennifer (Evin) Jones, Executive Director, [email protected]