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Sex Without HIV Disclosure: Should It Remain a Crime?

Why the Supreme Court is about to hear public health experts say it's time to soften the law. A special report.

By Stephanie Law, 12 Jan 2012, TheTyee.ca

Living with HIV

Some fear stigma, even abuse, if they say tell their partners they are HIV positive.

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Imagine you are a single mom who happens to be HIV-positive.

On one hot summer day, you meet the man of your dreams on a grass field while both you and the man's children are playing soccer. You go on a first date with him. And then another. Eventually, you fall in love with him. But you haven't told him you're HIV-positive. And pretty soon, you have sex with him -- just once, before finally, one day, you muster up the courage to tell him that you're HIV-positive.

He doesn't leave you. And your relationship continues to grow year after year, but it ends four years later. You never transmitted HIV to him. It doesn't end because of your HIV-status. But it ends because he starts to physically abuse you and your child. So you call the police to report him, and the case goes to trial. He gets charged and convicted with assault. But a year later, perhaps out of vengeance, he decides to call the police and tell them that you failed to tell him you were HIV-positive before you had sex at the beginning of your relationship. He claims that had he known you were HIV-positive, he wouldn't have consented to having unprotected sex. He also claims that you didn't use protection even though you vividly remember having done so. He presses charges against you for sexual and aggravated assault for non-disclosure of your HIV-status, which is equivalent to having sex with someone without consent, better known as rape, and for putting him at risk of serious bodily harm.*

You probably should have known better. You probably should have told him about your HIV status earlier. But you didn't, or maybe, you couldn't. As a result, the judge finds you guilty on both charges, and you're now officially a sex offender. And to the legal and criminal system, you're just as bad as a Rohypnol-slinging date-rapist.

This woman isn't just your imagination. She's a real person and on appeal, the Quebec Court of Appeal reversed the trial judge's decision initial decision, and found her not guilty of the two charges. And now, her case, R v. D.C., is headed to the Supreme Court of Canada, and will be heard on Feb. 8.

Some people might feel sympathy for her. Others might think she deserves to be convicted. But regardless of your feelings towards her, one question remains: why didn't she tell him she was HIV-positive before they'd ever had sex?

'Nobody wants to be rejected'

"You never know when's the right time to disclose," said Jason Black, a 25-year-old who's living with HIV. "There are so many different issues that you think about when you're deciding whether or not to disclose, and a lot of it is based out of fear."

"Because nobody wants to be rejected."

Jason Black's name has been changed in this story to protect him against unnecessary harassment from those who might not know his status. Black was diagnosed with HIV when he had just turned 20. At the beginning of his HIV journey, Black found himself going through numerous scenarios and asking dozens of questions in his mind before disclosing his status.

"Should I even disclose? What is the relationship going to become and is it really going to go anywhere? What kind of sex are we going to have? Are we even going to have sex? Is this person open-minded?"

Black is one of about 48,000 people living with HIV in Canada. He has to take one pill every day for the rest of his life. Although the pill isn't a cure, it does make his illness manageable and not life-threatening. It does so by keeping the amount of virus flowing in his blood so low that diagnostic tests wouldn't even be able to detect the HIV. Without the daily pill, HIV would kill off his immune cells and make him susceptible to all kinds of diseases that could end his life.

HIV used to be a death sentence, but with scientific innovation over the last decade, it's become a manageable chronic condition, much like diabetes or high blood pressure.

Taking the daily medication doesn't bother Black. He doesn't get worried about HIV affecting his physical health. What he does worry about, is what happens when he tells people, especially potential sexual or relationship partners.

"That's the hardest part about living with HIV, it's the whole relationship aspect of it," he said. "But you get used to people being weirded out by it."

It wasn't an easy journey for Black, who was born and raised in Vancouver, B.C., to get used to people's negative reactions. When he first found out he was HIV-positive, Black didn't know as much about HIV as he does today. He didn't know that he could live a long and healthy life. And he didn't know that HIV could be controlled with treatment, at least not to the extent that the virus becomes undetectable.

"When I found out I was positive, I held all of the stigma that many people today hold," he said. "Walking home, I was completely devastated."

Black had misunderstood his doctor when she told him that people were living up to 25 years after diagnosis. He didn't catch on that what she meant was, with proper treatment, people who were diagnosed back in the 1980s are still well and alive 25 years later.

"I was freaking out about that, and I started like planning my life," he said. "I was in my third year of university at the time, and I thought, 'What am I doing with my life? Maybe I should just quit school and go travelling.'"

He also worried about the casual contact he had with people.

"What if I gave that person HIV too? What if I gave some of my family HIV?" he'd asked himself. "It was really horrible when I found out because I didn't really understand fully how HIV was transmitted, I mean I knew to use a condom, but I wasn't quite sure about other things like oral sex or kissing."

In fact, many research studies have found that the risk of HIV transmission in a single act of unprotected sex is lower than one in 10,000, if the HIV-positive person has undetectable levels of HIV. The transmission risk is more than 10 times higher if the person has higher levels of HIV and isn't on HIV treatment. Transmission through oral sex and kissing is nearly impossible.

The tide turned for Black when he found a new doctor at the B.C. Centre for Excellence in HIV/AIDS at St. Paul's Hospital.

"The doctor was like, 'Okay, chill out, you're going to have lots of sex in your life, and you're not going to die anytime soon.'"

'It's always better to disclose'

Stigma, misinformation and lack of knowledge around HIV are the most common reasons for why people living with HIV have a hard time disclosing their status. That was certainly the case for Black, who found himself reluctant to start new relationships, thinking his status could harm others.

"Ultimately, it's always better to disclose and it's always better to be honest," he said. "It's really important to disclose before you get into any sexual activity with anyone to give them the option of protecting themselves and so they are fully aware of what they're doing."

Black never got that option before he had unprotected sex and became infected with the virus. He said he'd be devastated if he ever passed it on to someone else, not because of the physical impact of the disease, but because of the emotional burden that comes with it. He doesn't feel anger towards the person who passed it to him because he recognizes that he was at fault as well.

"The onus of public health should be on the individuals, everyone shares that responsibility," he said. "If you're going to engage in unprotected sex with someone than you should take precautions and wear a condom."

Black never considered pressing charges against the person who transmitted HIV to him. He actually didn't know at the time that such a sex crime existed.

The Supreme Court of Canada formalized the crime of non-disclosure of HIV in a 1998 ruling. The case is known as R v. Cuerrier. In the ruling the court stated that an HIV-positive person has to disclose his or her status before engaging in behaviours that could put someone else at "significant risk of serious bodily harm." The court, however, left a lot of room for lower courts to interpret what qualifies as "significant risk." To date, more than 130 people living with HIV have been charged in Canada for not disclosing their status, a majority of whom were later convicted. These charges included cases in which a condom was used, although the bulk of these have resulted in acquittals.*

If found guilty, like the HIV-positive single mom, someone can be convicted of both aggravated assault and sexual assault. The aggravated assault component is because you've put someone at significant risk of serious bodily harm. The sexual part comes from the argument that full consent to sex isn't possible without full information about the risks involved. So if an HIV-positive person doesn't disclose their status, then they put the partner at risk and any consent would be nullified.

The objective of this ruling is to try and legally enforce HIV disclosure. And in fact, some physicians actually do use this legal obligation as a tool to get their patients to disclose status to their partners.

"There's a general protocol for what to do when you have a new patient who just got diagnosed with HIV, and the first thing is to tell them not to infect anyone else and to tell their partners about it," said Norbert Gilmore, a Montreal-based physician who's been treating HIV-positive patients since the early 1980s. "We tend to warn them, 'If you go out and have unprotected sex without telling them before hand of your status, then you are at great risk of going to jail.'"

"That's enough to make people sit up and listen."

Fear of disclosure

But despite this use of the legal tool, some qualitative research shows that the criminalization of HIV actually makes people less likely to disclose. The bottom line is that the barriers to disclosure of status are still present, even if non-disclosure is made a crime. Whether it's a crime or not, for people living with HIV there's still the undeniable fear of rejection because of discrimination or worse -- the fear of violence or abuse as a result of disclosure.

More and more doctors and researchers are coming together to say "criminalization is wrong," Gilmore said. "Not disclosing your status when you know the risk of transmission is trivially low shouldn't be considered as criminal negligence, or reckless behaviour."

Gilmore doesn't disagree that there are cases where an HIV-positive person should be charged criminally for knowingly, and deceivingly, transmitting the virus. For example, one Ontario man was convicted for having unprotected sex with 11 women without disclosing his status. Johnson Aziga was found guilty in 2009 of two counts of first-degree murder for two women who died from AIDS-complications, 10 counts of aggravated sexual assault and one count of attempted aggravated sexual assault. Seven of the 11 women contracted HIV from Aziga. The high rate of transmission is due to the high levels of HIV virus in his body at the time of sexual intercourse.

"Criminalization should apply when there's a reckless disregard of health and welfare of other people," Gilmore said. "But we have a lot of people who don't feel that they're a danger to others because they are on treatment and their HIV is undetectable, and they're using condoms, but still get charged."

"These people aren't harmful."

Gilmore, like many other critics of the HIV disclosure law, believes that the law does more harm than good. For one, he says that the law deters people from getting tested for HIV.

"If you don't know your HIV status then you have nothing to disclose and you can't be found guilty, so why get tested? Why get care?" he said. "This is completely opposite of what doctors and public health people say, because if you don't get tested you won't get treated and get better."

And the disease will continue to spread.

"There are a lot of people who would prefer not to know their status so they won't have to deal with these troubles," he said. "They'd rather go on with their happy lives and not know, than to carry the burden of having HIV, of having to take the medications, and of having to disclose to people that they have sex with."

'Law needs to change': BC Health Officer

Most people would agree that it's simply immoral and unethical for an HIV-positive person to have unprotected sex, or even protected sex, with someone without disclosing their status. But illegalizing this unethical conduct seems to be counterproductive with regards to the public health goal of stemming the HIV epidemic.

Perry Kendall, provincial health officer for B.C., says the Ministry of Health works closely with the Attorney General and Crown prosecutors to share guidelines on the criminalization of HIV, and on the levels of transmissions risks.

"The issue up until this time was that there hasn't been good treatment for HIV, earlier on it was a death sentence, a fairly horrible one for that matter," Kendall said. "The drugs had serious side effects, but now it's treatable and manageable, and I think the law needs to recognize that and change itself to reflect that."

Kendall expects the upcoming Supreme Court hearings on Feb. 8 -- there are two: one is with the single mother C.D., and the other is R v. Mabior -- will reflect this new reality of treatment and HIV, and would give more clear guidance on what constitutes a "significant risk" of transmission and serious bodily harm. In the case of R v. Mabior, the Manitoba Court of Appeal acquitted him on four out of six counts of aggravated sexual assault for HIV non-disclosure, stating that there was no significant risk of transmission in those four sexual acts because Mabior had carefully used a condom or had had an undetectable viral load.

But ultimately, Kendall says the root of the problem and the continued spread of HIV in Canada is prejudice and discrimination. "It's more important than ever to get rid of the stigma and encourage people to be tested and get into treatment. We have an opportunity today to wipe HIV and AIDS out within a generation."

Many of those living with HIV and those working in health care and public health tend to agree that criminalization is wrong and outdated. But at the upcoming Supreme Court hearings, the Crown will be arguing that non-disclosure accompanied by any risk of HIV transmission, with or without a condom and regardless of the amount of HIV detectable in the person's blood, should lead to a criminal conviction. That is, the Crown wants to remove the "significant risk" test and to have non-disclosure should always be criminal.

Cécile Kazatchkine, a lawyer and policy analyst at the Canadian HIV/AIDS Legal Network, remarked that the Crown's argument is a move backwards.

"Imposing a legal duty to disclose without considering the transmission risk involved in the activity is very concerning and it contradicts all the development we've seen in science," she said. "Right now, people living with HIV are already being charged with extremely severe offences, they're being convicted of aggravated sexual assault, which could carry a maximum penalty of a life sentence."

And even if the person isn't handed down a long jail sentence, they'd be registered as a sex offender for not disclosing, which has huge consequences on their lives. For example, the person may face limitations around what jobs they can apply for, particularly any that has to do with children or vulnerable people. The registered title as a sex offender is usually reserved for people who are convicted of rape and possession of child pornography.

Kazatchkines argues that the law makes people more reluctant to talk openly about their disclosure and sexual practice with their physicians and counselors, "because this information can be used against them in future investigation."

"If they can't talk to the doctors and counselors, then how is this situation with HIV going to improve?"

Putting aside the public health and legal jargon, criminalization of HIV directly, and negatively, affects the individuals who are living with HIV.

False claims can derail lives

Michael Reid, community engagement manager at YouthCO, a youth-driven organization working with ages 15-29 living with or affected by HIV/AIDS or Hepatitis C, has met many people who have had negative experiences with the legal system. In one case, a young man was in a relationship with an older partner who was abusive.

"This person wanted to leave the relationship, and even though both parties were totally aware of his HIV status, the older abusive partner went to the police and made allegations that he was having unprotected sex without disclosing status," Reid said. "This person ended up in jail for a couple weeks while they were trying to sort out what was actually happening."

The police also released his name through the media and asked for anyone who'd slept with this individual or who'd been in a relationship with him to contact them. At the end of it all, these allegations were found to be false and he was released.

"What's left behind is not only a horrible situation for this member, but everyone who read those story is being like, 'Oh, there's another HIV-positive person spreading HIV.'"

"And it's just perpetuating stigma and misinformation around living with HIV today in 2011."

Twenty-five-year-old Black resents these public broadcasts and appeals to public related to an HIV-positive person who failed to disclose. Just this past summer, a 17-year-old Edmontonian girl's picture and name was broadcasted throughout mainstream media asking people to find her and for anyone who's had sexual intercourse with her to contact the police. In this situation, the police went as far as to get legal exemption to broadcast the young offender's identity, which is usually forbidden for minors under 18 years old.

"All of these images we see in the media again and again and again, they paint a horrible picture of all HIV-positive people subconsciously into the minds of the general public," Black said. "It's a terrible situation that there's so much stigma still when HIV is really a chronic manageable illness, no different from others."

"Criminalization is an erosion of all of our rights and our privacy," he said. "I think it does all of us a disservice, it does public health a disservice, and it does nothing to educate about the present reality of HIV."

Black no longer hesitates with disclosure. He understands that being HIV-positive means he also carries the responsibility of educating people that he meets. He doesn't necessarily always convince them that he's safe to be around, but he tries.

"Really it's just a kind of fear, and it's a reflection of oppression in society," he said. "People aren't taking the time to care for their fellow human beings and to really put themselves in the shoes of someone else who maybe doesn't have it as good as they do."

Black admitted that he grappled with stigma of HIV for a long time. And today, even though he's HIV-positive, he still holds a certain level of stigma against people living with HIV.

"We're all raised with certain views and ideas of society and other people, it's hard work to try and shake that up sometimes," he said. "Making it a crime just makes it easier to point at someone else and say, 'They're a bad person,' rather than, 'That's a person going through a really hard time, what can I do to support them?'"

*Story updated on January 18, 10:12 a.m.  [Tyee]

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