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This article was published 1/12/2017 (202 days ago), so information in it may no longer be current.
The Supreme Court of Canada had the chance to set a bold legal precedent on HIV non-disclosure by requiring that the law be used only in cases of intentional transmission. Instead, just days before World AIDS Day, it took a step back by dismissing an appeal application by Marjorie Schenkels.
In 2014, Schenkels, an Indigenous woman, was convicted of aggravated sexual assault for failing to disclose her HIV-positive status to her partner; she was later sentenced to two years less a day, plus probation.
While the complainant tested positive for HIV in 2011, Schenkels appealed her case to the Manitoba Court of Appeal on the grounds that there was a delay in bringing her case to trial and a lack of evidence as to her partner’s HIV status prior to their sexual activity. The Manitoba Court of Appeal dismissed her appeal for a new trial.
The Supreme Court of Canada last clarified the law on HIV non-disclosure in R. v. Mabior (2012), declaring that a "realistic possibility of transmitting HIV" is required to successfully argue a case. The court also found that there is no realistic possibility of transmission if a condom was used and the HIV-positive person has a low viral load (the amount of the virus present in the bloodstream).
Not only does wearing a condom significantly lower the risk of transmission even if the person has a high viral load, it has been scientifically proven that an individual with an undetectable viral load cannot transmit the virus.
Marilou Gagnon, an associate professor in nursing at the University of Ottawa, says the court’s decision is inconsistent with scientific evidence. "As a professional, you are working with the science that shows us that if you’re undetectable, you won’t be transmitting, that disclosure actually has no impact" in these cases.
Nevertheless, the courts have been very keen to convict. According to the Canadian HIV/AIDS Legal Network, the conviction rate for HIV non-disclosure is higher than the conviction rate for sexual assault in Canada, at 70 per cent and 24 per cent, respectively. This suggests that the courts are interpreting the mere possibility of transmitting HIV as more dangerous than sexual assault — despite the fact HIV is no longer a death sentence and that in most of these cases, HIV wasn’t transmitted.
Criminalizing non-disclosure has a number of harmful repercussions for people living with HIV, including increasing their risk of marginalization from their communities and families.
Schenkels contracted HIV through coerced sex; she didn’t disclose because she feared losing her friends. The sentencing judge interpreted this fear as an "inability to accept the gravity of her situation" and failed to consider the Gladue Principle "to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances."
At a time when the federal government claims to be committed to reconciliation with Indigenous peoples, sentencing Schenkels to prison for non-disclosure reinforces the idea that her circumstances do not differ from those of non-Aboriginal offenders.
Also problematic is the use of public-health records to help secure convictions in these cases. Marcus McCann, a Toronto lawyer who fought for four years to obtain secret prosecutorial guidelines on HIV non-disclosure cases from the Ministry of the Attorney General, said the most troubling aspect of the document was "a lengthy discussion about how to secure public-health records to use in the prosecution of HIV-positive people."
Preventing HIV transmission is not achieved through the blunt force of the law; rather, we need to increase access to HIV treatment, support and education. The use of public-health records to prosecute these cases "puts a chill on the ability of public health to do its job [which] is confirmed by this document," McCann said.
The HIV/AIDS Legal Network and the Canadian Coalition to Reform HIV Criminalization maintain that the law should be used only to criminalize those cases where the accused intentionally transmits the virus, which would automatically exclude cases where a condom is used.
They also suggest that we end the use of aggravated sexual assault charges in these cases, which clouds legal interpretations of consensual sex.
These recommendations, among others, were noted in the coalition’s Community Consensus Statement. Released this week in honour of World AIDS Day, the statement was supported by more than 150 HIV/AIDS groups across the country.
As we remember the lives lost to AIDS this Dec. 1, we would be right to think not only of how far we’ve come in the fight against HIV/AIDS, but also of how far we still have to go.
Without legal reform, we will simply continue to support the inappropriate and ineffective use of incarceration as a response to what is most assuredly a public-health issue rather than criminal concern.
This is even more troubling given that Lady Justice isn’t blind and Indigenous Peoples continue to be disproportionately represented in jails and prisons across Canada.
Katarina Bogsavljevic is a master’s student in criminology at the University of Ottawa, where Jennifer M. Kilty is an associate professor. Both are conducting research on the criminalization of HIV nondisclosure.