The theme of the 57th session of the UN Commission on the Status of Women now underway in New York is gender-based violence. Given the proven intersection of violence and the risk of women acquiring HIV, it is worth reflecting on the highly problematic expansion of the role of the criminal law in the HIV epidemic and its egregious impact on women.
While the problem is global, Canada has the dubious honour of having laid the most prosecutions against people with HIV for having unprotected sex with partners who are not living with HIV, without disclosing their status - 140 prosecutions and counting. 11% of these are women. Because Canada has no specific criminal law regarding HIV, police and prosecutors rely on the criminal laws of assault and murder to charge and try people.
Two recent Supreme Court of Canada decisions have now settled the law in Canada. The first is R v Cuerrier 1998 2 SCR 371. Mr. Cuerrier, who is HIV positive, had unprotected sex with HIV negative women without disclosing his HIV status. None of the women acquired HIV. He was charged with aggravated assault. The majority of the Court found that the consent given by the women was obtained fraudulently by Cuerrier’s non-disclosure of his status, thereby putting them at actual harm or the risk of harm. Exposing a person to the risk of HIV transmission through unprotected sexual intercourse is, in the Court’s view, exposure to a significant risk of bodily harm. Thus, disclosure is mandatory.
The second decision, R v Mabior 2012 SCC 47, confirmed the disclosure rule and extrapolated that non-disclosure would not be required if two conditions were met i.e. that a condom is used and that the person living with HIV has a low viral load.
The Court was made well aware that HIV transmission is not automatic but occurs in 1 in 1250 sexual encounters or .08% involving vaginal intercourse where the male is living with HIV and the female is not, and 1 in 2500 sexual encounters or .04% where the female is living with HIV and the male is not. Surely these statistics make it hard to find “significant risk “of transmission. Add the fact that condoms alone reduce this low potential for transmission by 80% and a low viral load alone reduces the risk by 96% and it seems incomprehensible that the Court would require both conditions be met in each sexual encounter to reduce the risk to below a significant level. Let’s remember that this is the criminal law in which intent is a requirement for conviction. Surely if a person wears a condom or has a low viral load at the time of vaginal intercourse, one cannot attribute criminal intent to his or her actions. What of the role of the other partner in assuming some responsibility for safer sex? What about the cases where no actual harm was done? So many questions with no answers from the Court.
Not only does the rarefied air of the Supreme Court chambers appear to have limited the judges’ ability to understand science and statistics, but it has also made them impervious to the situation of women in the real world and the perverse implications of their decisions on us. What are these implications?
First, it is well known that an epidemic parallel to HIV is raging globally, that of violence against women. It has been inextricably linked to the HIV epidemic in women, where 87% of cases globally in women are sexually acquired. This linkage relates to the power dynamic present in both epidemics.
For any arm of law enforcement to expect a woman to declare her positive HIV status to a violent sexual partner exceeds the bounds of reason. To expect her to demand condom use is equally unrealistic, no matter which partner is living with HIV. She may or may not be taking HIV medications depending on her stage of disease and whether she can hide them from an abusive partner if required. People do not take these highly toxic chemotherapy treatments unless their health requires them, assuming they are accessible where they live.
Women are often socio-economically dependent on their partners due to their limited access to social determinants of health for themselves and their children, including education and training, employment and social support networks. This leads to the same fears that violence does. Therefore, women have understandably adopted a coping strategy of “don’t tell and don’t try to negotiate from a position of weakness and risk homelessness, poverty and starvation .”
This is true in a generalized way for women in the south, but there are pockets of most at risk women in the north who face the same lack of monetary control and power in their relationships as well as violence. These groups include African-American and Hispanic women, Aboriginal women, sex trade workers, women who use illicit drugs and partners of people using illicit drugs, women in prison, homeless women, trans women, young women. Not surprising these populations of women are highly represented in the epidemic.
The Supreme Court decisions put these already marginalized women at greater risk of acquiring HIV, and of criminalization for allegedly putting their HIV negative partners at risk of acquiring HIV. We have already seen the murder, assault, blackmail and abuse of women who disclose their HIV status. With these decisions, we will see more of this immoral and illegal conduct. We will also witness an increase in HIV in women. They may be lulled into a false sense of security that their partners will follow these Court decisions, and either disclose their HIV status or wear a condom and have a low viral load if they engage in vaginal sexual intercourse. Yet there is no evidence that men will act differently, or have acted differently to date, due to the intrusion of the criminal law.
Women in violent relationships who are socio-economically dependent on their partners will do what is required for survival for themselves and their children regardless of these decisions.
The Supreme Court has made bad law by ignoring the science of transmission of HIV, and demanding a standard of conduct far above anything that is reasonable to avoid significant risk of transmission. It has done nothing to protect anyone from risk of HIV transmission. It is putting people with no criminal intent in jail, often where no harm has been done. Many of these people will be women whose only crimes are poverty, homelessness and lack of socio-economic power.
This session of the UN Commission on the Status of Women is an opportunity to redress this grievous and regressive situation of the criminal law intervening in public health with disastrous results. It should call on states to: repeal existing laws criminalizing HIV; educate law enforcement officers, lawyers and judges about facts of HIV clinical and social science, including recognition of the implications and mitigating factors implicit and explicit in being a women in this epidemic, including gender-based violence; and develop a strong public health approach with adequate resources to deal with the issues of non-disclosure appropriately.