Time to stand against the criminalization of HIV

This article first ran in the Toronto edition of Xtra in the fall of 2009. In it, Bob Watkin, the outgoing chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), discusses frankly the concerns raised by the criminalization of HIV in Canada. Among other things, he urges people not to contact the police with complaints about potential HIV transmission.

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Below is an edited transcript of comments outgoing HALCO chair Bob Watkin made in a Sep 9 interview with Xtra’s editorial director Matt Mills.

I will always support the HIV and AIDS Legal Clinic of Ontario (HALCO) and always be a champion of it. There were times however, even as chair, that I disagreed very much with some things that happened. One of those things is the way HALCO’s Ontario Working Group on Criminal Law and HIV approached the issue of HIV criminalization. Its position that criminalization — criminal charges against HIV-positive people for failure to disclose their serostatus to sex partners — may be called for in some instances is anathema to me. I will not accept it or agree with it.

This is the second time I’ve been chair of HALCO but my term comes to an end on Sep 23. I will remain on the board but, as I’m no longer chair, I can stand up and say things like I’m going to say now.

I cannot condone in any way the conduct of anyone that results in someone else being infected. But there is no justification at all — anyway, anywhere, anyhow — for the criminalization of HIV and AIDS.

Further, I’m suggesting to HIV-positive people that, if they find themselves charged in connection with failure to disclose allegations, they exercise their legal right to refuse to give statements that could end up being used against them in criminal court, that they should no longer cooperate with anyone, anywhere, anytime, or answer any questions about their sexual conduct.

To those who are not HIV-positive, if you call the police and complain about someone else because they may have infected you and you do turn out to be infected, you’re going to find yourself in the same position as the person you just complained about. Once you enter that world you are the same, there is no distinction between guilty and innocent. You are HIV-positive; you’re going to be dealt with that way, you’re going to be perceived that way and you’re going to be treated that way.

Don’t call the police.

Again, I’m not suggesting that anyone act irresponsibly. What I’m saying is it doesn’t matter what your actions are.

What led us to this point is an abject failure of the public health system and its proven inability to deal with a chronic long-term disease, HIV. In Ontario dealing with the disease is properly the purview of the Ministry of Health and Long-term Care and in particular ministry of health officials.

Public health has failed miserably. Health officials tout the fact that they have the ability to quarantine. We know they know about reckless conduct and that they issue warnings to individuals, but they fail to use those tools effectively. In the void that’s been created by their failure to act, the criminal law has stepped in to supplant them and that has made the situation much worse.

It may be very difficult for people to accept being locked up by public health but it’s much better to be locked away, treated and educated in a medical setting, than to be locked in a prison.

Criminalization has not been a political issue. But this approach may send a message to public health authorities, attorneys general and to governments: You’ve got to change the way you’re doing this.

To make failure to disclose HIV-positive status an offence the courts had to twist the law as it stood. Underlying all of that is the imposition of black and white on one of the most intimate and complex aspects of humanity: sexual conduct. Sexuality does not often involve rationality. And criminalizing HIV/AIDS overlooks that, in criminalization cases, both accused and accuser voluntarily took part in the act. After all these years of education, someone decided in the face of that knowledge to take a risk.

The charges boil down to allegations. There is no other evidence that is really relevant. In all of these situations, no one disputes that the sex occurred. Two people make an irresponsible decision, one of them happens to be HIV-positive. Only one of them is absolved and that just isn’t right.

All this has created an environment in which people are not getting tested. They are afraid to know. People who have means are leaving the country, getting tested elsewhere and in fact getting treatment elsewhere, so they don’t leave evidence of their HIV status.

We as HIV-positive people have to say, “Enough, this is it, no more.” Unless we start saying that as a group we’re just going to find our lives become more and more and more dreadful.