2Bmag online

Commentary•

Supreme Court decision on HIV dismisses UNAIDS, angers advocates

More : AIDS Action Now, HIV criminalization, HIV/AIDS, Supreme Court of Canada

by Jordan Arseneault on October 10, 2012

Last Friday, Oct 5, the Supreme Court released a decision that will affect how HIV positive people will be prosecuted when accused of aggravated sexual assault for failing to disclose their HIV status to a sex partner. A coalition of HIV/AIDS groups who acted as intervenors in the two cases called the decision “a cold endorsement of AIDS-phobia,” with several groups criticizing the Supreme Court for perpetuating the stigma and violence lived by HIV+ people, particularly women.

Earlier this year, the Supreme Court of Canada heard arguments from lawyers and intervenors regarding two high-profile cases of HIV positive people convicted of aggravated sexual sexual for failing to disclose their status to their sexual partners. The Mabior and “D.C.” cases represented two very different situations of HIV non-disclosure convictions. Clato Mabior, a Sudanese man living in Winnipeg, was accused of failing to disclose his HIV status to three women with whom he had sex without a condom. Although he had a low viral load due to medication, the court upheld Mabior’s sexual assault conviction using a new standard which will affect how prosecutors pursue cases of non-disclosure. Rather than an earlier 1998 decision that ruled exposure to HIV must represent “a significant risk of bodily harm,” the Court’s new decision will apply the measure of “realistic possibility” of transmission as the criterion for determining whether non-disclosure is criminal fraud or not.

This new criterion for non-disclosure as sexual assault was made explicit in practical terms by Chief Justice Beverley McLachlin, who wrote the text of the unanimous 9/0 ruling. In order for there to be no “realistic possibility” of transmission, the Court ruled that the HIV positive person must have an undetectable viral load (which they failed to define medically) and use protection, in spite of established studies which show that one or the other suffices to prevent the transmission of the human immunodeficiency virus. As such, the Court acquitted the Montréal area woman of aggravated sexual assault because lawyers were unable to prove beyond a reasonable doubt that she had failed to use protection. Known only as “D.C.” due to the legal anonymity afforded to survivors of abuse, her case was a lightening-rod for HIV/AIDS advocates because of the horrifying fact that her accuser, who did not contract HIV from her, was convicted of abusing her over the course of their four year relationship. His accusation of HIV non-disclosure is seen by advocates in the HIV/AIDS community as an example of the type of malicious accusations that the upholding of HIV criminalization will further allow.

A coalition of intervenors, including the Canadian HIV/AIDS Legal Network and the COCQ-sida, wrote in a statement the same day that the decisions “will stand as an impediment to public health and prevention, and add even more fuel to stigma, misinformation and fear. And they place Canada once again in shameful opposition to standards set out by international human rights bodies, UNAIDS and the Global Commission on HIV and the Law.” The Toronto-based activist group AIDS ACTION NOW released a statement on their website that the burden of proof for the HIV positive person, especially women, means that accusations of non-disclosure fail the basic test of judicial fairness: HIV positive people will be required to prove that they had a low viral load and used a condom in order to escape conviction. Hence, they are essentially presumed guilty until proved innocent. AIDS ACTION NOW also points to the perpetuation of gender-based violence which the new ruling would allow: the insistence on both low viral load and condom use ignores the fact that women are often not the deciding agent in whether or not penile contraceptives are used. Hence, an HIV positive woman with a low viral could be accused and convicted of aggravated sexual assault if she fails to convince her male partner to wear a condom for penetrative sex. The wording and framework of the decision bear an unfortunate leaning toward imagining the HIV positive person as typically male, which is not statistically accurate.

Some observers see the Supreme Court ruling as a compromise between the crown’s desire for blanket criminalization for all cases of non-disclosure, and HIV/AIDS advocates’ requests that Canada comply with UNAIDS recommendations to stop the use of criminal law against HIV positive people for non-disclosure, especially in cases where transmission does not occur. The United Nations hascalled for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.

UNAIDS, the main body for international AIDS research and prevention awareness, recommends that all countries “avoid introducing HIV-specific laws and instead apply general criminal law to cases of intentional transmission.” The office also urges all nations to “eliminate stigma and discrimination against people living with and affected by HIV through promotion of laws and policies that ensure the full realization of all human rights and fundamental freedoms.”

Most HIV/AIDS advocacy organizations see the decision as contrary to Canada’s public health interests in that it discourages people who do not know their HIV status from getting tested, and increases the stigma lived by carriers of the virus.

Banner photo: demonstration by members of AIDS ACTION NOW!