Analysis: The re-criminalization of queer sex
When governments commit to prevention and education campaigns, and when people commit to open discussion about risks and realities, HIV transmission rates drop drastically and stigma and discrimination ebbs. But over the last few years, even as our understanding of the pathology of the epidemic and the virus itself grows, the media has moved to more sensational and simplistic coverage in an effort to attract the largest possible audience. Therapies have prolonged lives, leading people to believe HIV is not the serious problem it once was. Governments have changed priorities, and Canadians and queer people have failed to adjust their attitudes to keep pace with the changing times.
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Stay in the Loop
1. Understand the Issue
Several men have been convicted of aggravated sexual assault and even murder for failing to disclose that they’re HIV positive. The transmission of no other pathogen is criminalized. HIV stands alone.
2. Take Action
Find out more about how you can make a difference! We have a list of six steps you can take. Read our TAKE ACTION segment below.
3. Stay Informed
Sign up for our email list to stay informed about this campaign.
The Issue
In Brief
In 1999 the Supreme Court of Canada ruled that HIV-positive people who fail to disclose their serosatus to their partners before unprotected sex can be convicted of aggravated assault. In 2003 the Supreme Court raised the possibility that a person may be charged criminally even if they don’t know for certain that they are HIV positive.
Since 1999 several men, many of them gay, have been charged and convicted of aggravated sexual assault and even murder for failing to disclose that they are HIV positive.
The problem is this: The transmission of no other pathogen from one person to another — tuberculosis, hepatitis, human papiloma virus, syphilis — is criminalized. HIV stands alone.
Backgrounder
HIV transmission remains a criminal matter even though public health authorities across the country — the apparatus that addresses transmission of every other communicable disease — are far better equipped to deal with HIV transmission than is the criminal justice system.
To have an HIV-positive man charged with aggravated sexual assault, a sex partner need only complain to police. Police will launch an investigation that is likely to include wanted posters and media advisories. There need be no actual transmission of the virus. The complainant may not even be telling the truth. This serves to further stigmatize HIV-positive people and to turn gay men against each other.
As a so-called victim of sexual assault, the identity of the complainant is automatically protected by court-imposed publication ban while the identity of the accused, as a sex criminal, is likely to be splashed across the mainstream press. It is almost impossible for accused persons to defend themselves in the forum of public opinion and it is very difficult for journalists to ever tell the whole stories.
The threat of criminal and social sanctions against people living with HIV acts as a disincentive for everyone to get tested and treated for HIV and encourages a state of denial in those who may be carrying the virus. That effect further complicates HIV-prevention efforts.
The law implies that HIV-positive people alone bear responsibility for HIV prevention. It does not account for the reality that everyone is responsible for his or her own sexual health. It’s a simple equation: Insist on safer sex and you will likely never become HIV positive, indulge in unprotected sex and you must assume the risk that you may become positive.
Criminalization serves to entrench the irrational stigma, rooted in homophobia and prudery, associated with HIV and those living with it.
Take Action
Condemn the criminalization of HIV in all its forms
1. Write to members of the mainstream media.
Call them to task when they present stories that fail to separate HIV from violent crime. Tell them that sensationalized witch-hunt stories about so-called HIV criminals only perpetuate injustice and misunderstanding. Teach them to think about HIV rationally, to examine their own prejudices and to separate sexual prudery from cogent argument. “It’s against the law,” and “bum sex is icky,” are not rational arguments.
2. Write to your MP, MPP and MLA.
Tell them that the criminalization of HIV is an unjust approach and demand a halt to failure-to-disclose charges and convictions.
Find your MP using your Postal Code
3. Join Xtra.ca.
Visit the site often to keep abreast of developments on this issue. Tell your friends about the injustice of the criminalization of HIV. Convince them that making a failure to disclose complaint to police is the wrong thing to do. It only undermines their own civil liberties and turns them against their friends and lovers.
4. Be open about your serostatus.
The voices of thousands of vocal, out, proud, HIV-positive gay men will not be ignored. Stigma will ebb because of a simple dearth of shame. Frank discussions about serostatus and risks before sex will strengthen prevention efforts and help you to protect yourself and your sex partners. If you have a first-hand non-disclosure story, consider sharing it with Xtra by emailing our editorial director at comment@dailyxtra.com Confidentiality is assured. We won’t publish your story or identity unless you’re comfortable with us doing so. Even if you don’t want your story told in our pages telling us may provide clues that may enable us to help others.
5. Assume complete responsibility for your own sexual health.
Never, ever depend on another person, no matter who, to keep you from becoming HIV positive or to stop you from passing the virus on to someone else. If you do become HIV positive don’t assign blame, take your medicine and know that your whole life is still ahead of you.
6. Join a Facebook group.
Make your voice heard on Facebook. Sign up for a group opposed to the criminalization of HIV transmission. Share the link with your friends.
Join the Facebook group:
I condemn the criminalization of HIV transmission
In Brief
In 1999 the Supreme Court of Canada ruled that HIV-positive people who fail to disclose their serosatus to their partners before unprotected sex can be convicted of aggravated assault. In 2003 the Supreme Court raised the possibility that a person may be charged criminally even if they don’t know for certain that they are HIV positive.
Since 1999 several men, many of them gay, have been charged and convicted of aggravated sexual assault and even murder for failing to disclose that they are HIV positive.
The problem is this: The transmission of no other pathogen from one person to another — tuberculosis, hepatitis, human papiloma virus, syphilis — is criminalized. HIV stands alone.
Backgrounder
HIV transmission remains a criminal matter even though public health authorities across the country — the apparatus that addresses transmission of every other communicable disease — are far better equipped to deal with HIV transmission than is the criminal justice system.
To have an HIV-positive man charged with aggravated sexual assault, a sex partner need only complain to police. Police will launch an investigation that is likely to include wanted posters and media advisories. There need be no actual transmission of the virus. The complainant may not even be telling the truth. This serves to further stigmatize HIV-positive people and to turn gay men against each other.
As a so-called victim of sexual assault, the identity of the complainant is automatically protected by court-imposed publication ban while the identity of the accused, as a sex criminal, is likely to be splashed across the mainstream press. It is almost impossible for accused persons to defend themselves in the forum of public opinion and it is very difficult for journalists to ever tell the whole stories.
The threat of criminal and social sanctions against people living with HIV acts as a disincentive for everyone to get tested and treated for HIV and encourages a state of denial in those who may be carrying the virus. That effect further complicates HIV-prevention efforts.
The law implies that HIV-positive people alone bear responsibility for HIV prevention. It does not account for the reality that everyone is responsible for his or her own sexual health. It’s a simple equation: Insist on safer sex and you will likely never become HIV positive, indulge in unprotected sex and you must assume the risk that you may become positive.
Criminalization serves to entrench the irrational stigma, rooted in homophobia and prudery, associated with HIV and those living with it.
Frequently Asked Questions
1. Isn’t it bad to lie to someone and to deliberately infect them with a potentially lethal virus?
Yes, but criminalization only compounds the tragedy of HIV. It complicates prevention efforts, perpetuates irrational stigma and homophobia and drives the issue underground.
2. If I shouldn’t call the cops, what should I do if I know someone is deliberately spreading HIV?
Tell your friends and sex partners that they should practice safer sex or assume the possibility that they may become HIV positive. Call your public health authorities or your doctor and tell them what you suspect. There is much they can do — partner tracking, counselling, treatment — without involving police. There is no criminal case or investigation unless a potential victim makes a direct complaint. Doctors or health officials may tell you that you have the option to press charges but don’t.
3. What about those who don’t have a say in when or how they have sex? Shouldn’t the law protect them?
The law already does protect them. Canadian society is a free one. It is not criminal to deny sex to anyone under any circumstances, ever.
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