World AIDS Day: Let’s stop criminalizing HIV status

In Canada, people living with HIV can be charged with not disclosing their HIV status to their sexual partners. Since 2004, there has been a marked increase in the number of people who have faced charges related to HIV non-disclosure.

In a 1998 landmark case, the Supreme Court of Canada ruled that a person who does not disclose their HIV status and expose other people to a “significant risk” of HIV transmission, could be found guilty of aggravated assault (the Cuerrier decision).

In October 2012, a Supreme Court of Canada ruling (the Mabior decision) intensified the impact of criminalization of HIV non-disclosure.

Clato Mabior was charged with nine counts of sexual assault for HIV non-disclosure for having unprotected sex (limited condom use) with female identified complainants who did not contract HIV and to whom he did not disclose his HIV status.

Mabior was living with a low viral load. The Supreme Court determined that low viral load with no condom use meets the test for “a realistic possibility of transmission of HIV.”

This ruling impacted people living with HIV as the justice system utilized a punitive approach causing people to live in fear and mental anguish. It also led to a decrease in rates of HIV testing and other health services.

However, in a severe complication of the case, one of the complainants was a 12-year-old girl. Most of the decriminalization advocates failed to address this separate critical factor of the vulnerability of children and women. The age of consent in Canada for sexual activity is 16 years old.

Instead of treating this as a unique case, the mainstream media narrative further stigmatized people living with HIV and characterized Black men as sexual predators. (Mabior is a Black Sudanese immigrant.)

People living with HIV are not synonymous with sexual violence, as this case and the legal criminalization of non-disclosure suggests.

The current legislation increases stigma and discrimination against people living with HIV and spreads misinformation. Given the preexisting criminalization of Black people in Canada — including experiences of historical and contemporary racial profiling and incarceration — the criminalization of Black people living with HIV is not surprising.

A man kneels to look at the Canadian AIDS Memorial Quilt at the Canadian Museum of Civilization on World AIDS Day in Hull, Que. on Dec. 1, 1996. THE CANADIAN PRESS/ Jim Young

The stigma of HIV + racism

Black people represent approximately 2.5 per cent of Canada’s population and 13.6 per cent of people living with HIV. Data shows that among non-disclosure cases, where the race of the defendant is known, only 36 per cent are Black, while 50 per cent are white. Yet this study of media representation found that since 1989, 62 per cent of all newspaper articles about HIV non-disclosure cases have focused on Black defendants.

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