When getting sexy with our partners, we all have an opportunity to talk about sexual health. In practice, many of us are reluctant to start a conversation, bring up condoms, or ask about HIV and STIs. For those of us living with HIV, not having one of these conversations means we may face charges of aggravated sexual assault. In fact, last month, we have seen two Toronto-area people living with HIV charged with aggravated sexual assault, and a call for their sexual partners to come forward to the police. One of the people facing charges is 20 years old.
To us at YouthCO, this just does not make sense.
1998 was the first time the Supreme Court of Canada found a person living with HIV guilty for not sharing their HIV status with a sexual partner. At the time, organizations including the Canadian HIV/AIDS Legal Network provided evidence to the Supreme Court that the criminal law would neither stop HIV from being passed nor would it support people living with HIV.
It does not make sense to us that only one person – the person living with HIV – should face criminal punishment in a situation when no one brought up HIV before sex.
Another case of what we now know as HIV non-disclosure made its way to the Supreme Court in 2012. Despite extensive advocacy, the court decided those of us living with HIV who are either a) having penetrative sex without a condom or b) using a condom, and have more than 1,500 copies of HIV per milliliter of blood (also referred to as “viral load”) have a legal obligation to disclose our HIV status. These decisions have unfortunately made Canada a world leader- and not in a good way- when it comes to prosecuting HIV-positive people.
YouthCO, like many organizations, has long opposed laws that criminalize the sex lives of people living with HIV. It does not make sense to us that only one person – the person living with HIV – should face criminal punishment in a situation when no one brought up HIV before sex. The law also does not make sense to us because we know that most people living with HIV go to significant lengths to prevent passing HIV. As well, it is generally accepted that those who maintain an undetectable viral load are incapable of transmitting the virus.
We also oppose the HIV non-disclosure law because it does nothing to prevent new cases of HIV. The law further marginalizes oppressed groups, including women experiencing violence, indigenous women, people who have immigrated to Canada, and people of colour. The reasons to oppose this law do not end here: we've got a full position paper and a short video that outline more reasons why we oppose this law.
As an alternative to this law, YouthCO works to build communities that share responsibility for sexual health. To do so, our members and staff create opportunities for youth to get more comfortable talking with sexual partners about HIV and condom use, asking questions of health care providers, and learning about how HIV is and is not passed. In this work, we also affirm that those of us who are living with HIV have the right to healthy and satisfying sex lives.
As young leaders, we refuse to accept that the current criminal law is the way it has to be. Our by-youth, for-youth programs help to decriminalize HIV non-disclosure by sharing facts and challenging stigma. Please join us in sharing the truth in our communities and with our legal system: HIV is not a crime!