Frequently Asked Questions
What is AIDS ACTION NOW!’s position on the criminalization of HIV non-disclosure in Canada?
In Canada, people living with HIV are required by the criminal law to disclose their HIV-positive status to sex partners before engaging in sexual activity that poses “a realistic possibility” of HIV infection. In its 2012 decision, R. v. Mabior, the Supreme Court of Canada stated that a realistic possibility of transmission of HIV is negated when an HIV-positive person’s viral load is low and a condom is used. Basically, that means that people living with HIV must disclose unless they have a low viral load and use condoms for sexual intercourse. If they don’t, they can be arrested, even if no HIV transmission occurred.
AIDS ACTION NOW! joined others to denounce the decision as a major step backward that ignores the science of HIV transmission, enshrines stigma in the rule of law, impedes public health and HIV prevention and abandons people living with HIV (http://www.aidsactionnow.org/?p=975 and http://www.aidslaw.ca/site/wp-content/uploads/2013/04/Oct5Statement-CrimSCC-ENG.pdf). In the face of an accumulated body of scientific evidence showing that HIV is a chronic manageable infection that, with effective therapy use, is much harder to transmit than ever before, the Supreme Court established a requirement for disclosure that is much broader than was the case over 16 years ago when it made an initial ruling on this issue in R. v. Cuerrier.
AIDS ACTION NOW! steering committee members have different views about the criminalization of HIV non-disclosure, but we all oppose it. We view HIV transmission as fundamentally a public health issue. We agree with the position taken by various international non-governmental organizations that, if used at all, the criminal law should be restricted to the most blameworthy cases, such as when a person with HIV deliberately infects another person or when public health measures have failed and a person’s ongoing behaviour poses a real risk of HIV transmission. We also support the position taken by a group of community organizations led by the Canadian HIV/AIDS Legal Network in an intervention before the Supreme Court in R. v. Mabior and R. v. D.C. that disclosure should not be required for oral sex, when a condom is used for sexual intercourse, or a person living with HIV has a low viral load.
What is the Think Twice Campaign?
Think Twice is an AIDS ACTION NOW! social marketing campaign to decrease the number of people living with HIV in Ontario facing criminal prosecutions related to HIV non-disclosure. The campaign has different phases. Each phase asks a different group of people to think about the complexity and uncertainty of HIV criminalization and the implications of their role in criminal prosecutions for HIV non-disclosure. The first phase of the campaign used postcards, a letter-writing campaign and demonstrations to encourage Crown Prosecutors to think twice before they prosecute HIV-positive people for non-disclosure. It argued that prosecutions for HIV non-disclosure must be based on complete and accurate scientific and medical evidence, not on preconceptions, fears or prejudice.
What are the objectives of the Think Twice Videos?
The videos posted on this site are the second phase of the Think Twice Campaign. This phase of the campaign focuses on gay, bi, queer and trans men who have sex with men. The goal of the videos is to decrease criminalization by challenging emerging norms that tell men who have sex with men that when they face a situation of HIV non-disclosure, even when there has been virtually no risk of transmission, they should respond by going to the police. We want to question that assumption and encourage HIV negative gay men to think differently.
Why do the videos focus on gay/bi/trans/queer men who have sex with men?
There are a number of reasons we focused on gay/bi/trans/queer men: (1) many of us on the AIDS ACTION NOW! Steering Committee and involved in AIDS ACTION NOW! are from these communities; (2) HIV sero-prevalence rates are high among gay/bi/trans/queer men; (3) criminal HIV non-disclosure cases are on the rise in the gay community; (4) we are concerned that HIV criminalization has eroded established traditions of mutual responsibility for HIV prevention among gay and other men who have sex with men; (5) we are concerned that HIV criminalization is giving rise to new normative expectations that sex partners of HIV-positive people who don’t disclose should respond by making a police complaint, regardless of whether any real risk of transmission has been posed.
How were the videos created?
AIDS ACTION NOW! receives no funding. We work as a collective and we all volunteer our time. We produced the videos on a $1,000 budget and everyone worked for free except our video artist. To find people for the interviews, we approached people from our extended networks and invited them to participate. Our invitation gave background information on the Think Twice Campaign and explained our goals for the video project. It gave a short description of AIDS ACTION NOW!’s concerns about HIV criminalization. It asked participants to answer the following question in their video statements: In 45 seconds what would you say to men who have sex with men to convince them to Think Twice before going to the police when a sex partner hasn’t disclosed to them.
In a few instances we had conversations with participants about their ideas for their video statements. The videos were shot over a two-day period. Some participants rehearsed their statements before they were video-taped. All the videos were done in a single take. We did not edit the videos for content.
Whose views are represented in the videos?
The views expressed in the videos are those of the individuals speaking. They do not represent the views of any organizations or groups.
Why did you decide to do individual interviews?
Individual interviews were the most cost-effective approach. We also wanted to provide a range of perspectives on the issue.
Why were no Aboriginal voices included?
In short, we made a mistake. It was a major oversight on our part. We tried to ensure that a range of voices were included but we neglected to reach out Aboriginal communities. We deeply regret that error.
Don’t you think people have a right to know that their sexual partner is HIV positive?
Some gay/bi/trans/queer men want to know about the HIV-positive status of their male sex partners and some assume that their HIV-positive partners will always disclose before sex. But not everyone does, a point made in some of the videos. Just because someone would like to know, doesn’t mean that non-disclosure should be a crime and partners who don’t disclose should be sent to jail, especially when the risk of transmission is low. The role of the criminal law is not to solve all problems. The criminal law is one of the most coercive societal powers. It is a blunt, harsh and costly instrument. It should be strictly limited and used as a last resort. Instead, we are seeing it being used very widely, including in cases where there is no real risk of transmission and where people have taken steps to prevent HIV transmission.
Don’t these videos say the same thing that women have heard for years? If you’ve been raped you deserve it, don’t go to the police, it will only make things worse for you etc.
No, they don’t. Some people who have responded to the videos in this way fail to understand that the videos are coming from a place that rejects the equation of HIV non-disclosure with rape. A number of feminist legal scholars and advocates agree with us that HIV non-disclosure does not fit the crime of sexual assault and certainly not aggravated sexual assault, which is the usual charge.1 Our position is that HIV non-disclosure should not be viewed, in law, as a rape and that no real harm to a complainant is produced unless there is HIV transmission. We do not view people with HIV who do not disclose in circumstances where the risk of transmission is remote as rapists. We want gay/bi/trans/queer men to think twice about going to the police after someone with HIV did not disclose to them before sex, especially when no real risk of transmission has been posed.
Well if that’s the case, what alternatives do people have?
Well that depends on what you view the problem to be. Some people have misunderstood the videos as addressing the problem of HIV transmission. They’ve suggested that the videos don’t provide alternatives like having safer sex every time and testing for HIV regularly. In fact, some of the participants in the video project make exactly these suggestions. But it’s important to recognize that the videos are not meant to provide a public health message. They are addressing a different problem: the overuse of the criminal law and the real potential that in the gay community, people now view going to the police in circumstances of HIV non-disclosure, regardless of the risk, as the right or normal thing to do. The videos suggest a number of alternatives to going to the police like having open conversations with your partners before and after sex, talking with your friends and people knowledgeable about the issue about how you feel about a situation of HIV non-disclosure, and visiting an AIDS Service Organization.
We would have liked to provide even more alternatives to laying a complaint with the police, but Ontario lacks a properly organized, well-thought out, formal mechanism for addressing concerns that HIV-negative men may have about HIV non-disclosure that does not engage the criminal justice system. This is something AIDS Service Organizations need to work toward establishing.
Additional resources
VIDEOS
Sex, Criminal Law and HIV Non-disclosure, Canadian HIV/AIDS Legal Network. This short, two-part video series addresses the urgent, pressing legal issue of criminalization of HIV non-disclosure in Canada, what is wrong with the current approach and why the Legal Network continues to work to change these laws and the way they are enforced.
http://www.aidslaw.ca/site/sex-criminal-law-and-hiv-non-disclosure/
Criminalization of HIV Non-Disclosure in Canada Video Series, Canadian HIV/AIDS Legal Network
https://www.youtube.com/playlist?list=PLuJOHrWHz9Ac5Ag3ZvGSjf6SR5NYea1k6
The criminalization of HIV in Canada. Bear Paw Productions. “The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, the disease's victims continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.”
http://ncsa.libguides.com/bearpawvideos
PRINT
HIV Disclosure: A Legal Guide for Gay Men, HIV & AIDS Legal Clinic Ontario
http://www.halco.org/wp-content/uploads/2013/10/HIV_disclosure-legal_guide_for_gay_men_Canada-2013May-ENG.pdf
Criminal Law & HIV Non-Disclosure in Canada, Canadian HIV/AIDS Legal Network
This is a series of three info sheets on the criminalization of HIV non-disclosure in Canada:
http://www.aidslaw.ca/site/criminal-law-and-hiv/
References
1. Alison Symington, HIV Exposure as Assault: Progressive Development or Misplaced Focus? In Elizabeth A. Sheehy, (Ed.) Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (2012) (for a discussion of this chapter see: http://equality.jotwell.com/the-impact-of-the-criminalization-of-hiv-non-disclosure-on-women); Isabel Grant, The Over-Criminalization of Persons with HIV, 63 University of Toronto Law Journal. 475, 481 (2013) Available at: https://muse.jhu.edu/login?auth=0&&url=/journals/university_of_toronto_law_journal/v063/63.3.grant01.html
What is AIDS ACTION NOW!’s position on the criminalization of HIV non-disclosure in Canada?
In Canada, people living with HIV are required by the criminal law to disclose their HIV-positive status to sex partners before engaging in sexual activity that poses “a realistic possibility” of HIV infection. In its 2012 decision, R. v. Mabior, the Supreme Court of Canada stated that a realistic possibility of transmission of HIV is negated when an HIV-positive person’s viral load is low and a condom is used. Basically, that means that people living with HIV must disclose unless they have a low viral load and use condoms for sexual intercourse. If they don’t, they can be arrested, even if no HIV transmission occurred.
AIDS ACTION NOW! joined others to denounce the decision as a major step backward that ignores the science of HIV transmission, enshrines stigma in the rule of law, impedes public health and HIV prevention and abandons people living with HIV (http://www.aidsactionnow.org/?p=975 and http://www.aidslaw.ca/site/wp-content/uploads/2013/04/Oct5Statement-CrimSCC-ENG.pdf). In the face of an accumulated body of scientific evidence showing that HIV is a chronic manageable infection that, with effective therapy use, is much harder to transmit than ever before, the Supreme Court established a requirement for disclosure that is much broader than was the case over 16 years ago when it made an initial ruling on this issue in R. v. Cuerrier.
AIDS ACTION NOW! steering committee members have different views about the criminalization of HIV non-disclosure, but we all oppose it. We view HIV transmission as fundamentally a public health issue. We agree with the position taken by various international non-governmental organizations that, if used at all, the criminal law should be restricted to the most blameworthy cases, such as when a person with HIV deliberately infects another person or when public health measures have failed and a person’s ongoing behaviour poses a real risk of HIV transmission. We also support the position taken by a group of community organizations led by the Canadian HIV/AIDS Legal Network in an intervention before the Supreme Court in R. v. Mabior and R. v. D.C. that disclosure should not be required for oral sex, when a condom is used for sexual intercourse, or a person living with HIV has a low viral load.
What is the Think Twice Campaign?
Think Twice is an AIDS ACTION NOW! social marketing campaign to decrease the number of people living with HIV in Ontario facing criminal prosecutions related to HIV non-disclosure. The campaign has different phases. Each phase asks a different group of people to think about the complexity and uncertainty of HIV criminalization and the implications of their role in criminal prosecutions for HIV non-disclosure. The first phase of the campaign used postcards, a letter-writing campaign and demonstrations to encourage Crown Prosecutors to think twice before they prosecute HIV-positive people for non-disclosure. It argued that prosecutions for HIV non-disclosure must be based on complete and accurate scientific and medical evidence, not on preconceptions, fears or prejudice.
What are the objectives of the Think Twice Videos?
The videos posted on this site are the second phase of the Think Twice Campaign. This phase of the campaign focuses on gay, bi, queer and trans men who have sex with men. The goal of the videos is to decrease criminalization by challenging emerging norms that tell men who have sex with men that when they face a situation of HIV non-disclosure, even when there has been virtually no risk of transmission, they should respond by going to the police. We want to question that assumption and encourage HIV negative gay men to think differently.
Why do the videos focus on gay/bi/trans/queer men who have sex with men?
There are a number of reasons we focused on gay/bi/trans/queer men: (1) many of us on the AIDS ACTION NOW! Steering Committee and involved in AIDS ACTION NOW! are from these communities; (2) HIV sero-prevalence rates are high among gay/bi/trans/queer men; (3) criminal HIV non-disclosure cases are on the rise in the gay community; (4) we are concerned that HIV criminalization has eroded established traditions of mutual responsibility for HIV prevention among gay and other men who have sex with men; (5) we are concerned that HIV criminalization is giving rise to new normative expectations that sex partners of HIV-positive people who don’t disclose should respond by making a police complaint, regardless of whether any real risk of transmission has been posed.
How were the videos created?
AIDS ACTION NOW! receives no funding. We work as a collective and we all volunteer our time. We produced the videos on a $1,000 budget and everyone worked for free except our video artist. To find people for the interviews, we approached people from our extended networks and invited them to participate. Our invitation gave background information on the Think Twice Campaign and explained our goals for the video project. It gave a short description of AIDS ACTION NOW!’s concerns about HIV criminalization. It asked participants to answer the following question in their video statements: In 45 seconds what would you say to men who have sex with men to convince them to Think Twice before going to the police when a sex partner hasn’t disclosed to them.
In a few instances we had conversations with participants about their ideas for their video statements. The videos were shot over a two-day period. Some participants rehearsed their statements before they were video-taped. All the videos were done in a single take. We did not edit the videos for content.
Whose views are represented in the videos?
The views expressed in the videos are those of the individuals speaking. They do not represent the views of any organizations or groups.
Why did you decide to do individual interviews?
Individual interviews were the most cost-effective approach. We also wanted to provide a range of perspectives on the issue.
Why were no Aboriginal voices included?
In short, we made a mistake. It was a major oversight on our part. We tried to ensure that a range of voices were included but we neglected to reach out Aboriginal communities. We deeply regret that error.
Don’t you think people have a right to know that their sexual partner is HIV positive?
Some gay/bi/trans/queer men want to know about the HIV-positive status of their male sex partners and some assume that their HIV-positive partners will always disclose before sex. But not everyone does, a point made in some of the videos. Just because someone would like to know, doesn’t mean that non-disclosure should be a crime and partners who don’t disclose should be sent to jail, especially when the risk of transmission is low. The role of the criminal law is not to solve all problems. The criminal law is one of the most coercive societal powers. It is a blunt, harsh and costly instrument. It should be strictly limited and used as a last resort. Instead, we are seeing it being used very widely, including in cases where there is no real risk of transmission and where people have taken steps to prevent HIV transmission.
Don’t these videos say the same thing that women have heard for years? If you’ve been raped you deserve it, don’t go to the police, it will only make things worse for you etc.
No, they don’t. Some people who have responded to the videos in this way fail to understand that the videos are coming from a place that rejects the equation of HIV non-disclosure with rape. A number of feminist legal scholars and advocates agree with us that HIV non-disclosure does not fit the crime of sexual assault and certainly not aggravated sexual assault, which is the usual charge.1 Our position is that HIV non-disclosure should not be viewed, in law, as a rape and that no real harm to a complainant is produced unless there is HIV transmission. We do not view people with HIV who do not disclose in circumstances where the risk of transmission is remote as rapists. We want gay/bi/trans/queer men to think twice about going to the police after someone with HIV did not disclose to them before sex, especially when no real risk of transmission has been posed.
Well if that’s the case, what alternatives do people have?
Well that depends on what you view the problem to be. Some people have misunderstood the videos as addressing the problem of HIV transmission. They’ve suggested that the videos don’t provide alternatives like having safer sex every time and testing for HIV regularly. In fact, some of the participants in the video project make exactly these suggestions. But it’s important to recognize that the videos are not meant to provide a public health message. They are addressing a different problem: the overuse of the criminal law and the real potential that in the gay community, people now view going to the police in circumstances of HIV non-disclosure, regardless of the risk, as the right or normal thing to do. The videos suggest a number of alternatives to going to the police like having open conversations with your partners before and after sex, talking with your friends and people knowledgeable about the issue about how you feel about a situation of HIV non-disclosure, and visiting an AIDS Service Organization.
We would have liked to provide even more alternatives to laying a complaint with the police, but Ontario lacks a properly organized, well-thought out, formal mechanism for addressing concerns that HIV-negative men may have about HIV non-disclosure that does not engage the criminal justice system. This is something AIDS Service Organizations need to work toward establishing.
Additional resources
VIDEOS
Sex, Criminal Law and HIV Non-disclosure, Canadian HIV/AIDS Legal Network. This short, two-part video series addresses the urgent, pressing legal issue of criminalization of HIV non-disclosure in Canada, what is wrong with the current approach and why the Legal Network continues to work to change these laws and the way they are enforced.
http://www.aidslaw.ca/site/sex-criminal-law-and-hiv-non-disclosure/
Criminalization of HIV Non-Disclosure in Canada Video Series, Canadian HIV/AIDS Legal Network
https://www.youtube.com/playlist?list=PLuJOHrWHz9Ac5Ag3ZvGSjf6SR5NYea1k6
The criminalization of HIV in Canada. Bear Paw Productions. “The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, the disease's victims continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.”
http://ncsa.libguides.com/bearpawvideos
HIV Disclosure: A Legal Guide for Gay Men, HIV & AIDS Legal Clinic Ontario
http://www.halco.org/wp-content/uploads/2013/10/HIV_disclosure-legal_guide_for_gay_men_Canada-2013May-ENG.pdf
Criminal Law & HIV Non-Disclosure in Canada, Canadian HIV/AIDS Legal Network
This is a series of three info sheets on the criminalization of HIV non-disclosure in Canada:
- The obligation to disclose HIV-positive status under Canadian criminal law
- The criminalization of HIV non-disclosure in Canada and internationally
http://www.aidslaw.ca/site/criminal-law-and-hiv/
References
1. Alison Symington, HIV Exposure as Assault: Progressive Development or Misplaced Focus? In Elizabeth A. Sheehy, (Ed.) Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (2012) (for a discussion of this chapter see: http://equality.jotwell.com/the-impact-of-the-criminalization-of-hiv-non-disclosure-on-women); Isabel Grant, The Over-Criminalization of Persons with HIV, 63 University of Toronto Law Journal. 475, 481 (2013) Available at: https://muse.jhu.edu/login?auth=0&&url=/journals/university_of_toronto_law_journal/v063/63.3.grant01.html
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