Decriminalize HIV

In February 2006 a 28-year-old Vancouver man was charged with two counts of aggravated sexual assault for allegedly having unprotected sex with two men after denying that he is HIV-positive.

In both cases it is alleged that the accused was the receptive partner — the bottom. Neither of the so-called victims subsequently tested HIV-positive. If convicted of aggravated sexual assault — the same crime as if he had coldcocked and raped two people — the accused young man, who is already living with the stigma of HIV, could face a sentence of up to 25 years in prison. His trial will likely happen this year.

That there are risks inherent in bareback sex is not a new discovery. Regardless of what the accused said or didn’t say before sex, his so-called victims chose not to rubber-up. The notion that the accused should bear the whole burden of guilt while the two men who chose not to protect themselves carry no responsibility for their own choices is simply narrow.

“Have they been living in a cave?” Phillip Banks, director of HIV prevention services at AIDS Vancouver asked me last year of the so-called victims. “The issue of gay men, who I’m assuming didn’t have guns to their heads when they decided to have sex without condoms, and who continue to be shocked and surprised when they find out they had sex with someone who maybe had a sexually transmitted infection, is ridiculous.”

Banks is right; it is.

Criminal law as an HIV-prevention tool is ridiculous, too. As it stands today, not only can those who are HIV-positive be charged with aggravated sexual assault, or even murder, but in the 2003 Williams case the Supreme Court Of Canada went so far as to suggest that those who had previously exposed themselves to what the court called “significant risk” may be convicted for failing to disclose that they might be poz.

There is no clarity in the law that identifies which risks are significant and which are not. Blowjobs, rimming, fucking and getting fucked each carry a different likelihood of HIV transmission but it’s not clear which are to be arbitrarily labelled significant and which are not.

Canadian Blood Services says it’s too much of a risk for any man who has had sex with another man even once since 1977 to donate blood. Does that mean that any man-to-man sexual contact, ever, could be judged significantly risky? Is every gay man to formally declare that he might be poz before each sexual encounter? Should we exchange notarized test results before our pants come off?

Those HIV-positive men who are quite rightly frank with their sex partners about their serostatus risk rejection, but they also risk that their personal health information will become fodder for community gossip. And, because prosecuting HIV-disclosure cases usually involves testimony about otherwise private conversations, anyone can build a criminal case against any HIV-positive person based almost solely on pillow talk. A mean-enough disgruntled ex-lover could simply say about his poz ex, “He told me he was negative.”

The law as it is now actually functions to turn queer men against one another. It perpetuates HIV stigma and motivates people to act strategically rather than morally. It’s simply destructive to our community and adds to the already heavy burdens of individual men who are living with HIV.

Disclosure ought not to be a criminal matter; it ought to be a moral and public health matter.

The public health system is far better equipped to deal with HIV transmission. Each province and territory has different public health laws but, as well as spearheading prevention efforts, provincial health officers have wide-ranging powers to direct treatment and counselling to HIV-positive people while better protecting patient confidentiality.

Health officers even have powers to detain or isolate those who are simply in denial about their status, who refuse to take precautions to prevent further transmission of the virus, or who can’t manage their HIV because of coincidental mental illness or addiction. Detention is reviewed on an ongoing basis, the key is never thrown away and punishment for living with a chronic and often deadly disease is avoided.