TSCE #36: Pushing To Decriminalize Non-Disclosure Of HIV In Sexual Encounters

Yes, this was actually discussed in several Parliamentary hearings in the Spring of 2019: should we decriminalize the failure to disclose HIV positive status in sexual encounters?

1. Trafficking, Smuggling, Child Exploitation

The TSCE series is a broad area, one that covers many overlapping topics. This includes the open borders agenda, organ harvesting, and various NGOs who help facilitate it. A subtopic for this article is using gay rights as a way to make this seem less wrong.

2. Just Another Scott Wiener Here?

California State Senator Scott Wiener was the subject of a recent piece. He helped pass legislation that reduced the penalty of KNOWINGLY spreading HIV from a felony to a misdemeanor. He also helped pass SB 145, which made sex offender registration optional for gay pedos.

This may be even worse, since proponents in the Canadian debate want to decriminalize non-disclosure of HIV status altogether.

3. Parliamentary Hearings In 2019

hiv.non.disclosure.april.9.meeting.transcript
hiv.non.disclosure.april.30.meeting.transcript
hiv.non.disclosure.may.7.meeting.transcript
hiv.non.disclosure.may.14.meeting.transcript
hiv.non.disclosure.June.04.meeting.transcript
hiv.non.disclosure.June.06.meeting.transcript
hiv.non.disclosure.June.11.meeting.transcript

hiv.CanadianHIVAIDSLegalNetwork-e
hiv.JointUnitedNationsProgrammeOnHIVAIDS-e
hiv.PivotLegalSociety-e
hiv.WomensLegalEducationAndActionFund-e
HIVJusticeWorldwide-e

hiv.non.disc.report.to.parliament

4. Lobbying By HIV Legal Network

In what should surprise no one, HIV Legal Network has been lobbying the Federal Government a lot over the last several years. Don’t worry, Canadian tax dollars are helping to pay for this.

HIV Legal Network is also not the only group trying to weaken the criminal penalties. There are several more.

5. Women’s Legal Education & Action Fund

One would think that a women’s group with a feminist tilt would be very concerned about removing penalties for crimes that can devastate women. Instead, Karen Segal of LEAF argued that non-disclosure of HIV during sexual encounters should be removed from the sexual assault laws, and possibly decriminalized altogether. Segal was more concerned with protecting the rights of causing this.

Remember LEAF? They come out with yet another anti-woman stance, this time, on protecting women from HIV infected people.

6. Recent Court Decision By ONCA

[1] Over a period of many months, after being diagnosed with HIV and warned about the need to disclose his HIV status to sexual partners, the appellant engaged in repeated acts of vaginal sexual intercourse with three different women. The appellant wore condoms but did not disclose his HIV-positive status and was not on antiretroviral medication. The complainants testified that they would not have consented to having sexual intercourse with the appellant had they been aware of his HIV-positive status.

[2] The appellant was charged with multiple offences, including three counts of aggravated sexual assault. The trial focused on whether the appellant’s failure to disclose his HIV status to the complainants, prior to sexual intercourse, constituted fraud vitiating their consent to that sexual activity in accordance with the principles laid down in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584. Although one of the complainants was diagnosed with HIV after her sexual relationship with the appellant, there was no proof that she contracted the virus from him.

And this goes to the heart of the matter: the other person would not have consented if the HIV status had been disclosed ahead of time. While these convictions were upheld, all of this can change if the Federal Government does implement changes to the criminal code.

7. Comm Report Recommends Decriminalization

Final Report To Parliament

5.1.1 Immediately Prohibiting the Use of Sexual Assault Provisions
The Committee agrees with witnesses that the use of sexual assault provisions to deal with HIV non-disclosure is overly punitive, contributes to the stigmatisation and discrimination against people living with HIV, and acts as a significant impediment to the attainment of our public health objectives. The consequences of such a conviction are
too harsh and the use of sexual assault provisions to deal with consensual sexual activities is simply not appropriate
.

5.1.2 Limiting Criminalization to the Most Blameworthy Circumstances
The Committee believes that a new offence should be created in the Criminal Code to cover HIV non-disclosure cases in specific circumstances. The new offence should not be limited to HIV but cover the non-disclosure of infectious diseases in general. The Committee is of the view that people living with HIV should not be treated differently than people living with any other infectious disease.

Recommendation 2
That the Minister of Justice and Attorney General of Canada immediately establish a federal-provincial working group to develop a common prosecutorial directive to be in effect across Canada
.
• to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission of the virus;
• to ensure that the factors to be respected for criminal prosecutions of HIV non-disclosure reflect the most recent medical science regarding HIV and its modes of transmission and only applies when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.

The report is correct in one regard: that this shouldn’t be limited to HIV. However, it otherwise comes across as pretty indifferent to the real world consequences of withholding such information to a partner.

While it talks about creating a new offence, it would most likely have very minor penalties.

8. Lametti Promises To Implement If Re-Elected

The Liberals hope to address the criminalization of HIV nondisclosure if re-elected in the fall, the federal justice minister said Friday as advocacy groups pushed the government to make changes to the law.

HIV nondisclosure has led to assault or sexual assault charges because it’s been found to invalidate a partner’s consent — the rationale being that if someone knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.

Advocates say the justice system lags behind the science on the issue, with a growing body of evidence saying there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.

A parliamentary committee has been examining the issue for months and is expected to release a report with recommendations next week. Justice Minister David Lametti said the Liberals want to address the matter but won’t have time to act before the October election.

This misses the point. While antiretrovirals may be able to treat the person with HIV, the other person would likely still withdraw their consent anyway.

It must be noted however, that the CPC members on the committee dissented in their views.

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