Making sexual freedom a priority

Led by keynote speaker and “mother of lesbian legal theory” Ruthann Robson, the University of British Columbia’s queer law students hosted their first annual Standard Margins conference to analyze how Canada stacks up against the rest of the world when it comes to granting and protecting sexual rights, Apr 27-29.

“Canada has become a beacon for those looking to study sexual freedom and law in the world,” says Robson.

But that hasn’t stopped Canadian courts from taking an increasingly hard line against HIV-positive people, prosecuting cases that feature not only actual transmission, but merely the possibility of exposure.

“The logic is that the complainant’s consent to have sex was not valid because had he or she known of the accused’s HIV status, he or she would not have agreed to have unprotected sex,” Alana Klein, of the Canadian HIV/AIDS Legal Network, told the conference. “As a result, it is the act of having sex without disclosing one’s status–rather than the consequences of that act–that form the basis of the charge.”

Most Western countries, in contrast, only seek prosecution in cases where actual transmission takes place, Klein noted. The risk of exposure alone is not enough to justify a charge.

Assault charges in Canadian HIV-exposure cases have become increasingly frequent since the 1998 Cuerrier case, in which a man had unprotected sex with his female partner without telling her he was HIV-positive. The Supreme Court of Canada ruled then that pos people must disclose their status to their sex partners. The court further ruled that a pos person who fails to disclose and has unprotected sex can be charged with aggravated assault.

But it’s often difficult for HIV-positive people to disclose their status prior to sex, Klein points out. Many fear reprisals or worse, she says, arguing that courts should consider a defence of “necessity” for pos people charged with non-disclosure.

“A broad defence of necessity that would allow people to assert fear of violence as a reason for failing to disclose would help here,” Klein suggests.

Glenn Betterridge, also with the Canadian HIV/AIDS Legal Network, says the public health system is better equipped to deal with the spread of HIV than the court system.

“The criminal law is a very blunt instrument,” Betterridge told Xtra West last year. “It doesn’t have a graduated range of intervention in the same way that public health does in terms of counselling, bringing people into public health services, and providing people with mental health services they might need.

“The use of the criminal law may have certain negative effects,” he continued. “One is to increase the stigma and discrimination associated with HIV, which may dissuade people from coming forward to get tested. If people know there is the potential to get criminally arrested, charged and perhaps found guilty and imprisoned because they know they’re HIV-positive, they might stay away from HIV testing.”

The best way to minimize the spread of HIV is not to criminalize its potential transmission and stigmatize its carriers but to normalize full and frank discussions of sexuality, critics of HIV-related prosecutions maintain.

Conference presenters also criticized the Conservative government’s ongoing push to raise the age of consent from 14 to 16.

Simon Fraser University graduate students Mary Shearman and Rebecca Haskell say the Conservatives’ bid to raise the age, allegedly to protect youth, is in fact hypocritical.

“The Conservative government is attempting to raise the age of consent for all erotic activities other than anal intercourse to 16,” Haskell told the conference. “However, Section 153 of the Criminal Code already prohibits sexual relationships between individuals where one is in a position of authority or trust over the other. It can be argued, then, that setting a higher age of consent is unnecessary as other preventative measures are in place.”

Even the existing measures are overly punitive, criminalizing potentially consensual sex, they noted. “Hypothetically, if a 15-year-old was participating in anal intercourse with a 21-year-old, both could be criminalized. Not only does this law discourage older gay men from acting as mentors for younger men, it further stigmatizes what is already a stigmatized identity.”

Shearman and Haskell also challenged the Conservatives’ refusal to bring the legal age for anal sex into line with the legal age for heterosexual intercourse. Right now, the Criminal Code makes it a crime for anyone under 18 to have anal sex, whether they want to or not.

Canadian law unfairly targets gay men by favouring “traditional” sex over non-reproductive sex, the duo argued.

“The age of consent for sexual acts, except anal intercourse, is 14,” Shearman explained. “The age of consent for anal intercourse is 18. Technically, this is discriminatory against anyone who enjoys anal intercourse, whether gay, straight, queer, etc. However, anal sex is associated with homosexual men. By having different ages of consent for various sexual acts, it means that the law is endorsing the idea that one act is more acceptable than another.”

In her keynote address, Robson, who teaches at City University of New York’s School of Law, pointed out that South Africa became the first country in the world to include sexual freedoms for the queer community in its constitution. It’s a battle, she said, that is still being fought all over the globe.

“Sexual freedom is a matter of conscience for each of us,” Robson wrote in a recent editorial in the Sunday Times of Johannesburg. “How we choose to live our sexual lives and interact with others in a diverse and democratic society is a vital issue. Yet, our choices are often constrained by our personal circumstances, as well as by laws and constitutional values. However, making the right to sexual freedom a priority is necessary, even as it is linked to other rights such as equality, health, education, security of the person, housing, religion, culture and the rights of children. I suspect our ideas of sexual freedom are still evolving. Realizing our ideals poses an even greater struggle.”