How HIV-positive disclosure laws hurt women and visible minorities

By Erica Lenti - Published on December 3, 2015
hands holding a red AIDS ribbon
Not disclosing HIV/AIDS to partners is against the law. Activists believe overturning that law could result in less stigma and more testing.

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Toronto’s Jackman Hall theatre is packed with more than 100 spectators when Muluba Habanyama sits on stage and announces that she is HIV-positive. Now 22, the journalist and HIV activist was diagnosed at two years of age in 1995, having contracted the virus through maternal transmission. “My mother thought it was a death sentence, but I’m still here,” she tells the audience. There are no tears or wringing of hands. There isn’t a sense of shame or fear in her voice.

On this November evening, Habanyama is speaking on a panel following the premiere of Consent, a documentary produced by the Canadian HIV/AIDS Legal Network. The film explores the intersection of gender and HIV non-disclosure criminalization in what the filmmakers describe as a “conversation” format, featuring experts, activists and academics. But of all the speakers discussing the film tonight, Habanyama stands out most: she is the only one who could be jailed for carrying a virus.

Since 1998, when the Supreme Court ruled in R. v. Cuerrier—a case in which a Canadian man was charged for having unprotected sex with two consenting women and did not disclose his HIV-positive status—it has been punishable by law for a Canadian to withhold an HIV-positive status from a partner before having sex if he or she poses what the legal system calls “a realistic possibility of transmission.”

Whether the virus is transmitted does not matter; those living with HIV can be charged with aggravated sexual assault. Furthermore, the courts have not defined what constitutes a “realistic possibility of transmission,” blurring lines between what is legal and what is not. The law became harsher in 2012, when two Supreme Court cases established that even small risks of infection were opportunities to transmit the virus.

HIV activists and many in the legal system have deemed the law antiquated. They say its repercussions are dangerous—especially for marginalized groups who risk being criminalized while living with HIV.

It was in this light that the Canadian HIV/AIDS Legal Network began exploring links between women’s rights, consent law and non-disclosure criminalization. The 1998 and 2012 rulings were made to protect those the Supreme Court perceived as most vulnerable: women. Since its introduction 17 years ago, the law has charged and convicted primarily men who have not disclosed to their female sexual partners. But, as the experts and academics in Consent suggest, non-disclosure is actually doing little to protect women. “We thought that needed to be picked apart a bit,” says Alison Symington, co-director of research and advocacy at the Toronto-based legal network and co-producer of the film.

Disclosing an HIV-positive status to a partner puts women at significant risk for violence or discrimination from partners who don’t know much about or fear the virus. But not disclosing poses an entirely different risk: they can be charged, convicted and labelled as sex offenders. As Alana Klein, an assistant professor in law at McGill University, asks in the documentary, “Is this who we mean by ‘sex offenders?’ Young women?” It’s a lose-lose situation.

Habanyama understands this on a personal level. The law is still enforced despite advances in medicine that prove HIV is no longer the death sentence her mother once feared. Often, with the right cocktail of antiretroviral medication, a person living with HIV will have an undetectable viral load. In fact, this week, a study found using the pill Truvada in regular doses can prevent transmission among people at high risk. “But I’m still wondering if I would go to jail for this,” Habanyama muses during the panel. At the time of writing, 14 women have been charged with non-disclosure in the country, and Ontario remains the province with the highest rates of conviction.

Women are not the only group to experience risk regarding non-disclosure law. Racialized communities, including newcomers to Canada and aboriginal women, are also disproportionately represented in non-disclosure suits. In fact, one 2012 study found black men accounted for more than half of the cases prosecuted in Ontario between 2004 and 2010.

Activists have a wealth of reasons for supporting decriminalization. For one, it reduces the stigma of testing positive for HIV. Many suggest that testing rates would increase; those at risk of transmission may opt out of testing for fear of being criminalized should they indeed be positive, and aware of their status.

For another, it removes blame from those living with HIV, and opens up the responsibility of transmission to both willing and consenting partners. “It is my belief that when you consent to have sex with someone without using protection, you’re opening yourself up to those risks,” says Jean McDonald, another panelist and the executive director of Maggie’s: The Toronto Sex Workers Action Project. And as the law currently stands, those who are labelled sexual offenders for non-disclosure could also be sexual assault victims.

Consent also reignites a longstanding political debate about the issue. Throughout this year’s federal election campaign, several LGBTQ and HIV activists asked candidates if they would lobby to decriminalize non-disclosure. At one Toronto LGBTQ leaders debate in September, candidates from all three major parties in attendance agreed it was time to put a stop to the law—including Bill Morneau, now the federal finance minister.

Over time, trial judges may attempt to disregard these laws, Klein says, but decriminalization does not seem imminent. Toronto-based litigator Joanna Birenbaum puts it best in the film: “The law is a blunt instrument”—and legal changes are often difficult to make.

Instead, activists suggest starting a conversation: about HIV, about non-disclosure, about sexual assault laws and the meaning of consent. In the least, that’s what Symington says Consent is all about. “We want to expand our circle of allies, and make that link between women’s sexual assault advocates and the HIV community,” she says. The more openly such laws are discussed, the more likely a wider dialogue about consent and HIV will take place. As Habanyama has proved by example, we need to start talking.

Erica Lenti is a Toronto-based freelance journalist who covers mental health, LGTBQ and women’s issues.

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