From the Canadian HIV/AIDS Legal Network
Legal Network testifies as Justice Committee begins study
Last week, the House of Commons Justice Committee began its study of the Criminalization of Non-Disclosure of HIV Status. Our executive director, Richard Elliott, testified as a key witness to help our MPs gain more insight into what the law should be. Here’s a short excerpt from his testimony:
“Despite the advances in science and our understanding of HIV transmission, we continue to see prosecutions being brought in cases where there is simply no scientific basis for doing so.
A single act that may pose a statistically negligible risk of transmission can have you treated, in law, equivalent to a violent rapist and designated a sex offender for life, with all of the harms that follow.
This is not good public policy. At the end of the day, I would suggest, the harms of HIV criminalization … significantly outweigh any purported benefits.”
In his testimony, Richard made reference to a recent step in the right direction. You may remember that last year the federal Attorney General issued a directive to limit HIV non-disclosure prosecutions. But this only applies in the territories, where federal prosecutors handle criminal cases, so it will have limited direct impact. We urgently need action from provincial Attorneys General on this front.
We also need reforms to the Criminal Code that will further limit the misuse of the law and ensure consistency across the country. The federal government needs to put an end to the use of sexual assault charges as the means of criminalizing HIV non-disclosure. And it should limit any use of the criminal law to cases where there is intentional, actual transmission of HIV to another person — which are exceedingly rare.
As we highlighted to the Justice Committee, these calls to action are supported by 174 organizations across the country that have signed their names to a Community Consensus Statement.
The message to MPs is clear: end the criminalization of people living with HIV and put human rights at the centre of any response to HIV.
What we think of BC’s new policy announcement
While we continue to work on the federal government, our advocacy at the provincial level is making some headway too. On Tuesday, the BC Prosecution Service announced a new policy on prosecuting allegations of HIV non-disclosure.
At last, BC policy clearly states there will be no prosecution in cases where the person living with HIV has a
“suppressed viral load” (under 200 copies/ml) for at least four months, because there is no risk of transmission. The new policy also states that there will be no prosecution for just oral sex if “no other risk factors are present.”
But, to be clear, this is a very modest step forward for BC and falls short of what we’ve advocated for. People living with HIV in BC deserve at least the same protection as those in the territories under the federal directive, and this new BC policy doesn’t go far enough.
For example, it doesn’t clearly rule out prosecuting people who use condoms. Instead, it just says that using a condom is a factor that may weigh against prosecuting someone. This doesn’t reflect that a correctly used condom is 100% effective in preventing transmission. Disappointingly, it’s against the advice we gave the BC Attorney General in our briefing a few months ago.
Keep up the fight
We’re making some progress. Decision-makers are at least recognizing there’s a problem and we’re gradually chipping away at the stigma and injustice in the overly broad use of the criminal law. It’s vital to celebrate these small but meaningful advances for people living with HIV.
But there’s still a lot of work to be done, in BC and across Canada. Together, we can create lasting change.
In solidarity,