A Feminist Approach to Law Reform on HIV Non-Disclosure

The Women’s Legal Education and Action Fund (LEAF) has written a position paper proposing a feminist approach to law reform on HIV non-disclosure. You can download the position paper here.

LEAF supports the federal government’s recent prosecutorial directive intended to reduce the over-criminalization of those living with HIV/AIDS. Canadian law currently criminalizes HIV non-disclosure where a person who is HIV-positive exposes their sexual partner to a significant risk of serious bodily harm—which in law includes a realistic possibility of HIV transmission. Most cases are prosecuted as aggravated sexual assaults, which is punishable by a maximum life sentence. As of December 2018, the Attorney General of Canada will not prosecute charges of HIV non-disclosure if a person living with HIV has maintained a suppressed viral load, used condoms, or engaged only in oral sex.

Women’s rights are also engaged by this area of law. Women are often complainants in these cases—nearly 20% of women with HIV report having acquired the virus through sexually coercive experiences. And HIV non-disclosure prosecutions have led to an increase in women, particularly marginalized women, being convicted of aggravated sexual assault. Almost 80% of women living with HIV are Indigenous or racialized, and they already face serious over-criminalization.  Prosecuting HIV non-disclosure as a sexual offence has distorted concepts about sex and consent that are foundational to women’s equality – in an attempt to fit HIV non-disclosure into sexual assault law, courts have narrowed the scope of sexual activity that requires consent in law and risked introducing discriminatory myths and stereotypes into the criminal trial.

This is why LEAF is recommending further reforms that will ensure meaningful protections for women’s equality rights—especially for marginalized women. Most importantly, HIV non-disclosure should not be treated as a sexual offence. This would protect the equality-enhancing purpose of sexual assault law by affirming a concept of consent that is rooted in sexual autonomy. Where HIV non-disclosure results in actual transmission of the virus, prosecution may be appropriate under non-sexual Criminal Code offences. This would reduce the punitive over-criminalization of people living with HIV, while protecting women who contract HIV from partners who take no care to prevent transmission. There are no Canadian cases where an accused responsibly used a condom or had an undetectable viral load and the virus was nonetheless transmitted. Finally, prosecutorial guidelines should ensure that HIV positive women who are victims of violence, coercion or sexual assault are not prosecuted for their failure to disclose their HIV status when that failure is a result of the violence or threats of violence committed against them.