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Winnipeg Sex and Stigma Talk May 2015

Public Health, Stigma and the Criminalization of HIV Non-Disclosure in Canada

Alexander McClelland

Thanks so much to the organizers for having me today! It is a real honour for me to be here today, and for me to help open up the important, critical, productive, and in some cases challenging conversations we will all have over the course of the day.

Much respect to the first people’s of this land for having me set foot on this land today. I am honoured to be here and I hope to engage thoughtfully and respectfully with the environment while I am here.

The focus of this conference is on stigma, with attention on working to examine how and why forms of stigma around HIV and STIs have developed over time and how the policies and practices of institutions and people within them can contribute to how stigma manifests. This issue is particularly important for us as we live in a country that is known as a hot spot for the criminalization of HIV non-disclosure and exposure. Per capita, we are close to having the most cases on these two issues in the world.

I come to my work as an interdisciplinary scholar – now focusing on critical criminology, surveillance studies, feminist ethnographic research, and critical social science and HIV studies.

More simply, what this means is that I study the role of law in society and its impacts on people and communities impacted by HIV. So I am not a lawyer, or studying to become one, and thus I will not always have all the legalese answers in relation to specific laws. Also, in relation to studying law and society, I come from a constructivist point of view. Which means that I do not take anything for granted

1 Please not cite without permission: [email protected] and I study how law and legal knowledge are socially constituted – meaning that I believe there is no absolute legal truth or natural law – but rather that laws and knowledge around crime and who is understood as criminal are socially, historically and contextually specific.

Here I understand law not as a “unified phenomenon governed by certain universal principles”, but rather a social, political, economic discursive construction that is applied in order to regulate aspects of society at specific moments in time. So applied this to the criminalization of HIV non-disclosure, I look at why and how people living with HIV have become the targets of Canadian criminal law, and who this benefits and why?

So with this, you will note that I have a certain bias when talking about the law, and the role of law in society. And as such, feel free to challenge me on issues, or present your own perspective at any time during our discussion afterwards.

Before my work as an academic, I worked for many years as a front-line peer support worker for other young people who were also living with HIV in downtown Toronto (at the time – when I was a young person lol). I worked for a program called Positive Youth Outreach provided through the AIDS Committee of Toronto, and our program was funded through Toronto Public Health whom I worked with regularly. I tested positive for HIV just a few months after my 19th birthday, and as someone living with HIV, I have had regular contact with community-based organizations and Public Health professionals as a client, and as someone who has a reportable communicable disease.

While in this job a good friend of mine tested positive and joined our program. He went on a retreat where I hosted a disclosure and safer sex workshop. This friend of mine used the knowledge that he learned through my workshop. This was prior to all the knowledge we have now indicating that having an undetectable viral load makes one uninfectious. At the workshop I had talked that oral sex was considered a

2 Please not cite without permission: [email protected] very low risk activity and often people didn’t use condoms for that sex act – but did other things to manage potential risks. We used a pragmatic, harm reduction and non-judgemental approach in the group. So this friend of mine, a few years later was arrested on aggravated sexual assault charges for not disclosing to someone he had oral sex with. He used the knowledge that I shared with him. Knowledge that was also promoted by the Public Health Agency of Canada. But he was still arrested and charged. Arrested by a swat team and flown to jail. Because of a blowjob with a consenting partner. He spent time in a solitary confinement cell. He spent a year under house arrest. His charges were stayed – meaning they were not dropped but instead they were held over his head and ultimately dropped. His life has never been the same. He has experienced depression, shame, paranoia, and lots of self-stigma. This experience also deeply marked me. As someone else that this could easily happen to, and to a former service provider who shared sexual health knowledge that people depended on.

So while my work now brings together an intersection of various forms of academic study, my engagement with the issues we are discussing today has intersected with many aspects of my life.

With my perspective, one that crosses a range of ways of knowing, and a range of knowledge disciplines, I move forward in my work. Seeing through a range of perspectives can enable me to ask critical questions that may not be possible when working within one disciplinary system of knowledge, such as that of solely within the bounds of Public Health, or solely within the law. And so today, this is what I will be doing, is talking about the criminalization of HIV non-disclosure and exposure through a range of perspectives (academic, lived, professional and personal), a range of ways of knowing, and a range of life experiences.

So for the next 40 mins or so we I will be talking about the current context in Canada where under specific circumstances HIV exposure and non-disclosure are now defined as criminal acts. In my work I seek to understand what this means for

3 Please not cite without permission: [email protected] people living with HIV, what this means for people working to respond to the HIV and how this impacts the work of healthcare professionals.

So in relation to stigma, I am very directly going to be outlining how stigma around HIV manifests through the application of criminal laws, criminal justice system practices, public health laws and healthcare professional practices.

Goals of my talk today: • Through a historical examination of a number of cases from the past and present, this presentation will examine the Canadian context of criminalization of HIV and other STIs.

• We will examine the role of public health in supporting or impeding this increasing practice of criminalizing diseases that are sexually transmitted.

And in this talk I am going to do my best to stick to cases that have taken place in Winnipeg so as to make it most relevant for this context. Note that I am not from here, so you many know more than me about some of the cases, and I’d be happy to learn more about them if there are gaps in my what I know. There are more stories than what we will talk about today, and you may more know stories that I don’t know.

So I wanted to start by telling another story:

Before coming here to Winnipeg I contacted a few friends of mine who are living with HIV to see how if they had anything they wanted me to tell of you folks today. This is my friend (we’ll call him) John’s story who has been living with HIV for a long time. He is not newly diagnosed, or unstable in being connected to care – he was literally just, moving here because he got a new

4 Please not cite without permission: [email protected] job. John moved here recently from another city in Canada and had to get connected to new health system. This is what he wanted to share with you:

“In each of my two official visits to seek healthcare, first, with my family doctor, secondly with my HIV specialist, each physician questioned me about whether I was aware of my “legal duty to disclose my status to partners”, which showed both an ignorance of the law on the books, but also was unsolicited. Not being comfortable with challenging them, I felt like I needed to defend myself, and present myself as a “good HIV positive man” who always disclosed. From my perspective, this was invasive, and not a good way to create an open and safe dialogue with a patient. What if I had told them I did not always disclose? It felt almost as if they were screening my behaviour.

I then received a letter from Public Health indicating that I needed to call “in regards to an important matter”, which, as it turned out, was a welcome to Manitoba, and some questioning about my health, my diagnosis, my medication, and again, whether I knew to disclose to partners. I was frustrated, as I had never been informed that I would be called by public health, and I felt like I now belonged to a registry that I had no desire to be on.

Each of these interactions has rattled me after the fact. I feel more surveyed since coming to the province than I did in a much larger city and province. And I also don’t feel I can interact with my healthcare providers in an honest way; if I “screw up”, will I be reported? Condescended to? Judged? Charged?”

So while perhaps the intentions of John’s healthcare providers and the public health system were benevolent. The result of their various interactions has led John to fell as though he is being surveilled, monitored, and not trusted to manage his own health. Instead of engaging with John in a way that led him to fell supported, connected and respected, he has been left feeling like he is being watched, he is suspicious and when he “screws up” he now knows that public health authorities

5 Please not cite without permission: [email protected] knows where he lives. John immediately feels as though the public health institution in Manitoba does not have his back or interests at heart. John didn’t feel as though he was engaged with as a member of the public, and it is of often the case that those of with HIV are not the “public “ that public health focuses on. We are understood as risks that need to be contained in order to protect the real “public” from contamination. So John is immediately placed in a sense of insecurity in relation to his healthcare providers whom he no longer trusts. The “chilling” effect with service providers has taken place.

So I would like to ask all of you to think through what other ways could public health folks have engaged with John? Is this is the only approach available? What is the public health intention of underlining for him that he must disclose to all sex partners? (We’ll deal with how that requirement is also incorrect in a few minutes).

Is it the role of public health to communicate criminal law obligations to people? If so, how can we do it in a way that doesn’t harm and alienate folks? What happens when these criminal and public health legal obligations produce a sense of insecurity and uncertainty for the health of people living with HIV?

How would you feel if you have newly moved into a province and you received a letter from public health indicating that they knew personal health information about you, and that they knew where you lived and that you had the potential to break the law? Would you trust that institution after the fact?

What kind of rational response do we expect from people living with HIV in this climate surveillance and fear?

I’m not going to answer all these questions, but I would like you to think about them as we discuss this issue further.

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Let me quickly contrast this story from my friend John with the stories of Cicely Bolden and Stuart Mark.

Cicely Bolden In Dallas Texas in 2012, Cicely Lee Bolden, then 28 years old disclosed HIV status to her boyfriend Larry Dunn. Dunn had been cheating on his wife with Cicely and a week after she told him he came over for sex, and after having intercourse with her, he stabbed her repeatedly in the neck with a steak knife from her kitchen. He stated afterwards in his confession: “In my mind, I’m already dead, she killed me, so I killed her.” Her 7-year-old son and 8-year-old daughter found her body. Dunn was later sentenced to 40 years for the murder.

(Potential headline: http://thestir.cafemom.com/love_sex/143216/man_accused_of_killing_girlfriend)

Stuart Mark Closter to home, as some of you may know, here in Winnipeg in 2007, Stuart Mark, 36, disclosed his HIV-positive status to his causal partner Michael Pearce. Pearce became enraged after the disclosure and came to Stuart Mark’s in home on Alfred Avenue. He entered the home and hit in Mark in head with a golf club over 58 times and stabbed with a knife repeatedly in the stomach, lung and liver. Pearce was sentenced to 7 years for manslaughter. In 2014 the Manitoba superior court is granting Pearce a new trail as his defense argued that he was treated unfairly by police and had been on Tylenol 3s at the time of the murder.

(Potential article: http://www.winnipegsun.com/2014/07/17/new-trial-in-hiv- positive-gay-lover-bludgeoning)

Whenever I disclose my HIV status I always remember Cicely Bolden and Stuart Mark. I think of how brutally their bodies were torn apart due to the fear and hatred people have manifested towards those of us with HIV. And In a sense, due to how

7 Please not cite without permission: [email protected] the law understands those of us with HIV and how we are presented as violent, perpetrators and vectors of disease over and over again in the media and by police statements, it is not impossible to understand the fear that their partners felt as well.

So think again, what becomes rational for a person living with HIV in a context where one could face the threat of a brutal murder for disclosure? Where we are forced to disclose under the criminal law, and monitored by public health professionals, but where the results of that disclosure could mean intimate partner violence and death?

How did we get to this place where John is treated the way he is and where Stuart Mark life is so brutally taken – all related to HIV disclosure?

Snap Shot of Current Criminal Law Situation:

Very brief overview of Mabior & D.C. As I already mentioned, globally, Canada is considered a ‘hot-spot’ for criminalizing the non-disclosure and exposure of HIV. With over 170 prosecutions and more cases on the rise. Canada is known for imposing very harsh and punitive penalties against people living with HIV who do not tell sex partners their HIV status, or potentially expose others to infection. We have the first global first-degree murder charge for such a case, and we have one of the first and only criminal charges against a mother for exposing her child to her breast milk.

Canada does not have HIV-specific laws; rather we apply existing laws to cases of non-disclosure. Charges in HIV exposure and non-disclosure cases can range from assault to attempted murder and do not require HIV transmission to occur. A majority of people in these cases are charged with aggravated sexual assault, one of the most serious offences in the Criminal Code reserved for violent sexual assaults. This means that the assault in question was made more serious through

8 Please not cite without permission: [email protected] endangering the life of the complainant. So this is a law intended for the most violent of rapes, where a weapon is used as the aggravating factor.

So I again I want to remind you that HIV transmission doesn’t need to occur and often doesn’t occur in these cases – and even if it did we are in a context where HIV when treated is not a condition that endangers one’s life anymore. Those prosecuted can face very long sentences, are registered as sex offenders for life, and are known to be held in segregation units – often administrative segregation for fears that they will further spread HIV to other folks inside prison. In some cases the Crown has sought to get offenders classified as a ‘dangerous offenders’ – which can result in indefinite detention due to concerns for public safety.

The landmark 2012 Mabior and D.C. Supreme Court decisions outline that people are required to tell a partner they have HIV before they engage in sex that poses a ‘realistic possibility’ of transmission. This decision is partially based on the Clato Mabior case that took place here in Winnipeg. Mabior, a black man, was sentenced to 14 years for aggravated sexual assault with 6 women in 2008, and was ultimately deported by Canada Border Services Agency (CBSA) in 2012 to South Sudan. None of Mabior's partners were infected with HIV as a result of their contact with him. As we will see, many of these cases impact black men and also deal with issues of immigration.

This new legal test that emerged from the Mabior case now requires disclosure for vaginal intercourse unless a condom is used and the person with HIV must have a "low" viral load. To go back to John’s interactions with healthcare professionals, they falsely indicated that he had to disclose to all sex partners.

But in fact, anyone who doesn’t disclose their HIV positive status when having sex with just a condom OR just having a low viral load can be arrested and prosecuted.

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So John only has to disclose to sex partners if he is not using a condom and has a detectable viral load. With a condom and a low viral load John doesn’t have to disclose under the law.

Just to get into the technical aspects of the law here for a minute: without both a condom and a ‘low viral load’ a person’s consent to sex is legally vitiated, as the act of non-disclosure constitutes a form of fraud. In this criminal law context, sex attainted through certain forms of fraud is understood as a sexual assault. Fraud (not telling your sec partner you have HIV) vitiates a person’s consent. The aggregating factor is HIV, which has the potential, under the gaze of the criminal court, to cause bodily harm that could result in death.

So what has happened here is that the courts have taken a law originally intended to protect people from the most violent of rapes and they have repurposed it – by drawing on people’s fears and ignorance of HIV.

This is in a context where the science as we now know tells us that HIV medication taken regularly result in HIV-positive people being virally undetectable – and thus most often not infectious to others.

Previously, the law had been murkier: the 1998 Supreme Court decision required that someone with HIV must disclose if the sexual behaviour they engaged in posed a “significant risk” of transmitting HIV to their partner(s). But the court did not define “significant risk” and this led to years of uncertainty for people living with HIV and many inconsistent charges and prosecutions – such as my friend being arrested for oral sex.

But while the law has been somewhat clarified, with this new clarification the Supreme Court has actually expanded the legal obligations for HIV positive people. As for many using a condom and having a low viral load is redundant, or also not always possible.

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So the legal test that the court established has a few issues…

What are some of the main assumptions that this legal decision makes?

Acquiring a low viral load requires access to anti-HIV drugs, which are still out of reach for many of us. Condom use is also complex when power and gender-based violence are factors.

And while often people living with HIV are counselled by healthcare professionals to disclose their HIV status, issues of personal safety prevent this from happening, and as we saw with Cicely Bolden and Stuart Mark the outcome of disclosure can be intense violence and murder.

The decision requires a condom, but who has control over the use of a condom? The Supreme Court ruling ignores the fact that many people are not able to use condoms for complex reasons, such as power dynamics in relationships – especially gender dynamics. Men are the one who have the ultimate power to use a condom. So this decision puts women living with HIV in a precarious situation.

Additionally, some people are also not able to achieve a ‘low viral load’. Acquiring a low viral load requires access to anti-HIV drugs, which are still out of reach for many. Some women living with HIV have been shown to have a harder time biologically achieving a low viral load, even when they are adherent to their medications.

So quickly, lets look at some data on these 2 issues:

Highly Active Anti-Retroviral have been available for people living with HIV since 1996, and we have universal health care in this country right, so let’s look at some the data on access to treatment:

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Robert Hogg and others of the BC Centre for Excellence in HIV (2012) compared the number of people on HAART (by collecting prescription counts) with the total number of people living with HIV in British Columbia, Québec and Ontario (the three provinces where 86.1% of Canadians with HIV live), finding treatment access rates at 45%, 37% and 32% respectively. The higher rate in British Columbia was associated with the province’s universal public pharmaceutical coverage, whereas the majority of people with HIV in Ontario and Québec obtain special drug coverage through opt-in catastrophic plans. So this data highlights that even though we have had meds for positive people since 1996 – the current system is only reaching way less that 50% of the folks who need them – for a whole range of reasons.

Additional small sample studies on treatment access have been conducted, primarily focusing on marginalized people living with HIV (including indigenous people, people who use drugs, and women engaged in commercial sex), identifying low levels of treatment access associated with social vulnerability. For example, in 2009 a study of HIV-positive women engaged in survival sex work in Vancouver’s Downtown Eastside, only 9% were able to access treatment.

Ontario, newcomers who have health insurance can access programs that pay for HIV and HCV treatments. A study conducted at St. Michael’s Hospital in Toronto compared medically uninsured patients to medically insured patients covered through the Ontario Health Insurance Program (OHIP). Researchers found that: HIV prevalence was significantly greater in the uninsured group (24%) than in the insured group (4%) (12). The main reasons people lacked insurance were that: they were landed immigrants in the health insurance waiting period (27%) or they did not have permanent residence in Canada (22%).

Also, over the years, rates of mortality have declined considerably, especially for men, since the introduction of HAART. However, death rates among women have

12 Please not cite without permission: [email protected] remained stable. Aboriginal People starting HAART had similar HIV treatment responses to other folks, but were more likely to die than non-Aboriginal People.

People who are incarcerated also have a hard time accessing HIV medications. For example, we can look at the case of Howard Matthews. Matthews, a black man, was arrested by police and remained in remand during his trial in Ontario. He was convicted of 2 counts of aggravated sexual assault, one count of assault, and two other minor charges for not telling 4 women his HIV status before having sex with them. None of the women acquired HIV. He was incarcerated in 2006. During his incarceration he lost over 36 pounds and his viral load went from 540 to 160 in less than a year. He met with a nurse 3 times during his incarceration in 2 different institutions. At no time during his incarceration was he put on HIV treatments despite being incarcerated for potential HIV exposure and non-disclosure.

On the 12th of August 2007, Howard Matthews, died of AIDS in Central North Correctional Centre in Penetanguishene Ontario at 27 years old.

There was a coroner’s inquest into his death – which is no longer a mandatory process when someone dies in state custody, but used to be when someone died in custody of the state. It made a series of recommendations around how to support prisoners with HIV in relation accessing HIV meds… none the recommendations have been adopted by Corrections Service Canada, or Ontario Corrections.

His death, while an exceptional circumstance, highlights the issues with getting people access to medications while incarcerated.

For low viral load & women: Researchers in three provinces—British Columbia, Ontario and Quebec—recently analysed health-related information collected from 5,442 HIV-positive people since the year 2000. The researchers found that women generally began ART at an earlier age than men and that women were more likely than men to disclose that they injected street drugs. However, regardless of their

13 Please not cite without permission: [email protected] history of injecting drugs, women in this study were less likely than men to achieve an HIV viral load less than 50 copies/ml. Furthermore, even if they did manage to get their viral load below the 50-copy threshold, women were more likely to have this degree of virologic control as a temporary event, as their viral loads would eventually rise above the 1,000 copies/ml level.

So back to the Mabior decision: Interpreted by activists, this ruling over-extends the law, puts the legal burden solely on people living with HIV, and is inconsistent with years of HIV prevention work.

In this context, one accusation from an angry or upset former lover can result in lengthy court battles, incarceration and sensationalized media exposure. Even if the person decides to drop the charges, the state can pursue criminal prosecution in the "public interest". Critics of criminal law application for this issue say that the criminal justice system it is an overly simplistic system, based on the binary of innocent and guilty, which obscures power relations and people’s lived realties and that it is ill-equipped to deal with complex social issues such as sexual relations between people.

Let’s look at one case from Winnipeg that took place and was widely publicized in the Winnipeg Free Press and Winnipeg Sun and other media outlets last year:

Marjorie Schenkels, a 27-year-old woman living with HIV was convicted in December on an aggravated sexual assault charge here in Winnipeg for having sex with a man while she was intoxicated on a range of drugs and alcohol. Schenkels didn’t disclose her HIV status to her partner. She was on medication, had a low viral load and her accusing partner remains HIV-negative and is in his 40s. According to a police report she was in disbelief about her status and was "scared of losing everybody", a very common and reasonable fear those of us living with HIV face.

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Schenkels also faced a direct indictment during her case, which meant she and her lawyer were not allowed pre-trial preparation, a

Due to her case, her name and details about her personal sex life have been plastered across the media in Winnipeg and the country. In this context, it is no wonder when she found out her HIV-positive status that she was in disbelief. The only people we hear about as having HIV in the current context are in the media portrayed as violent sexual criminals, in high profile cases, being prosecuted under some of the most severe measures in this country’s Criminal Code.

It was reported a number of times in the media that Schenkels “was repeatedly warned by doctors in 2010 about her duty to disclose the condition to any male partners” and that “doctors had warned her of her duty to disclose”. This testimony from her doctor was used against her and was one of the factors that led to her conviction.

This is all despite the fact that her lawyer suggested that the sex was not consensual on for her, and that her male accuser should be convicted of sexual assault. He is in his 40s and was reported as being extremely aggressive towards her during instances where she was intoxicated.

So here we can see that the power imbalance becomes very real – the obligation to use a condom rests with Schenkels – despite the complex circumstances of her interaction with this man, a man who is now considered a victim in the eyes of a criminal court.

So I also mentioned that Schenkels’ doctor testified, and this was used against her. Let’s quickly chat about the issue of how those providing health services are dealing with this context.

Catherine Dodds, researcher from the UK’s London School of Hygiene and Tropical Medicine developed a project called Keeping Confidence: HIV and Criminal Law From

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Service Provider Perspectives. Dodds examines the perspective of service providers who support people living with HIV. As a result of the legal environment in the UK (where only intentional transmission is prosecuted), Dodd’s qualitative research with 75 service providers reveals a conflict between the professional liability and the ‘duty of care’ for those they work with, and the ‘duty to the law’, or the legal liability to report a client if they fear they could be having unprotected sex. Dodd’s work shows how many providers had a basic understanding of the law, but they lacked a nuanced understanding so as to effectively communicate legal obligations to clients.

With this project, the roles of providers have become conflicted which, Dodd notes, creates professional uncertainty around service provision and the potential new burden that has emerged for them to communicate accurate legal information. In some cases, providers now see themselves as having to enforce the law and/or build legal literacy (re: people living with HIV’s criminal law obligations), as well as providing care and support. This has complicated service provider/client relations and has potentially negative consequences for the delivery of care. In a small number of instances this issue has directly impacted how people do their jobs, as a few providers noted that they have stopped detailed note-taking during client sessions to avoid the potential for health records to be subpoenaed.

As service providers’ jobs are becoming entangled with new legal obligations, Dodd’s work is important in expanding understandings of the impacts of criminalization on the services that people living with HIV access to support their health and wellbeing.

Non-disclosure is a different issue than HIV exposure – HIV non-disclosure simply means that a person with HIV did not disclose their HIV-positive status to a sex partner. While exposure means that someone was potentially exposed to HIV, or was at risk of HIV transmission. There are many cases related to this as well in Canada, and sometimes the non-disclosure and exposure cases overlap and are

16 Please not cite without permission: [email protected] intertwined. People in these cases can be charged with assault, administering a noxious substance, attempted murder, murder, and a range of other charges.

As an example: Just a few days prior to Schenkels’ conviction, Clifford Bear, a 44- year old aboriginal man living with HIV, also from Winnipeg, was convicted with attempted aggravated assault and sentenced to 6 1/2 years in jail for spitting his bloody saliva at police officers that arrested him. Clifford’s case against the cops was up on appeal and has been around for a number of years. At his recent hearing, the new judge agreed with prosecutors that HIV should be an aggravating factor in the case. His sentence was increased to close to the maximum – 7 years is the max for aggravated assault. None of the report mention why Bear’s mouth was full of blood while in police custody after his arrest – although we can easily speculate that a intoxicated aboriginal man, who is known to police and caught shoplifting will be arrested in a violent manner. While in custody it was indicated that Bear was placed in a “spit sock” — a hood of netting that’s placed over the head to prevent people from spitting. He took the sock off and spit again at the cops, this lead to the judge believing that Bear’s actions were premeditated. Bear was on HIV medication at the time and his viral load indicated as low, meaning that is near impossible to transmit the virus. According to reports Bear has spent much of his life either incarcerated or homeless. During his sentencing hearing Bear stated: “I would never do anything to harm anyone with (HIV). In a way I was glad I have it `cuz the cops won’t beat me up no more”.

Nowhere in this case - as my good friend Ted Kerr, of Edmonton, who now lives in NYC mentioned on Facebook - was there any mention of the premeditation of the ongoing and genocidal project of Canadian settler-colonization, the premeditation that has aimed to systematically destroy the land and culture from which Clifford Bear is indigenous since the formation of Canada as a nation-state.

DEMOGRAPHICS Social scientists have documented that the law related to HIV non-disclosure and exposure has been applied asymmetrically, leading to a sense of uncertainty among

17 Please not cite without permission: [email protected] people living with HIV. Criminal cases related to HIV non-disclosure in Canada are strongly patterned by gender, race, and sexual orientation.

So I don’t have time to get into this too much, but just for your information, you should check out this article:

Mykhalovskiy, E.; Betteridge, G. (2012). Who? what? where? when? and with what consequences?: An analysis of criminal cases of HIV non-disclosure in Canada. Canadian Journal of Law and Society, 27(1), 31-53

What it indicates is that Cases are going up! Here we can see a slow rise since 1989- Approximately 69% (78/113) of criminal cases in Canada for which the year of charge is known occurred between 2004 and 2010 inclusive. The rise in cases – of which there are now around 170 – some scholars have linked this rise to the conservative government’s ‘tough on crime’ agenda.

Criminal cases related to HIV non-disclosure in Canada are strongly patterned by gender, race, and sexual orientation. Gender is a strong predictor of whether someone will face criminal charges related to HIV non-disclosure: across Canada (90%, 103/114), the vast majority of individuals who have been criminally charged have been black men.

The under-representation of gay men and over- representation of heterosexual men among defendants, relative to their overall proportion of HIV-positive individuals in Canada, raises interesting questions for how and why the criminal law is applied to some groups and not others. With this, it is important to note that in 2012, 50.3% of all adult HIV-positive test reports where the exposure category was known were attributed to gay men and other men who have sex with men (Public Health Agency of Canada , 2012).

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Additionally, this article indicates that, 78% of cases up-to 2010 (67/86) ended in a conviction on at least one charge related to HIV non-disclosure, while 16% (14/86) ended with an acquittal. A large proportion of convictions were the result of a guilty plea, as distinct from a finding of guilt after a trial.

Across Canada, there was no allegation of HIV transmission in 39% of cases that resulted in convictions (26/67)

Across Canada (Figure 6), in 89% of the cases in which the sentence was known (56/63), the convicted person was incarcerated.

High conviction rates and high rates of incarceration upon conviction served to distinguish HIV non-disclosure from other (aggravated) sexual-assault offences. The vast majority of recent cases of alleged HIV non-disclosure have been prosecuted as sexual assaults or aggravated sexual assaults.

Aggravated sexual assault carries a maximum penalty of life imprisonment, and the potential of life imprisonment for HIV non-disclosure in the almost 40% of cases across Canada in which no HIV transmission occurred. So what is important with all those stats is to highlight how unequal and intensely punitive the application of the criminal law is in this context.

Some history – lets go back a little: I’m a history nerd, so please indulge, even if for you might be too much of tangent…

For me, in order to better understand the issue from a historical standpoint, it is helpful to step back and look at the historical context of law making in Canada and the role of law in Canadian society. Our current criminal code is around 123 years old – not that old in the scheme of human history – and Canada is a relatively new nation. With this, new laws are created, and old laws are reinterpreted or repealed.

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In 1867, Canada was formed as a settler colonial nation with the passage of the Constitution Act. Section 91 of that act states that the Parliament of Canada has jurisdiction over what constitutes criminal law. So after that, in 1892 the Criminal Code was enacted. The criminal code is primarily a system of common law inherited from the United Kingdom – with a large majority of the criminal code being inherited from them as well. And while the criminal code is defined and regulated federally, it is administered provincially – with oversight from the Supreme Court of Canada. So this means that each province interprets the Federal code in provincial courts.

In relation to common law, the system used in all provinces except Quebec, what this means is that in today’s context we are often relying on legal decisions or precedents that were made in some cases from over a hundred years ago in the United Kingdom to outline how in Canada we define criminality and precede with criminalizing certain offences. So for example, in the 2012 Mabior Supreme Court decision, the precedent of fraud vitiating consent is discussed in terms of cases from R. v. Dee (1884), R. v. Bennett (1866), R. v. Sinclair (1867) among others.

As of 1917, approximately 12% of the general population in Canada had gonorrhoea, syphilis or herpes, which had massively boomed during the war (Cassel, 1987). Concerned doctors, nurses, politicians and members of what was known as the women’s moral reform hygiene movement mobilized a provincial campaign to have Ontario and Canada follow the British model for combating these growing epidemics (Cassel, 1987; Buckley, & McGinnis, 1982). This approach relied on the development of a state epidemic governance apparatus which consisted of military specific laws, provincial acts, a nationally funded-prevention campaign and public health body, regional clinics that provided free testing and treatment, and the inclusion of “reckless” transmission of venereal disease into the Criminal Code at the federal level – which was later repealed in 1983.

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Providing a continuum of measures and interventions - some voluntary and some coercive - is a balancing act that the project of public health has grappled with since these early days of Canadian settler-colonial nation-building. Scholars on this era have documented how the coercive aspects of venereal disease management asymmetrically impacted prostitutes, ‘vagrants’, and new immigrants, people of colour and people in poverty (McGinnis, 1990; Kulba, 2008). One of the first laws of this nature in Canada was Section 45a of Defence of Canada Order enacted during the World War as part of the War Measures Act in early 1918. This law was specifically aimed at women, and it stated:

“No woman who is suffering from a venereal disease in a communicable form shall have sexual intercourse with any member of His Majesty’s forces or solicit or invite any member of said forces to have sexual intercourse with her” (Boudreau, 1918)

This law thus allowed for any woman who frequented places where military forces hung out, bars, barracks, bases, and other areas to be rounded up, arrested and forcibly tested for venereal disease. Those who tested positive would be remanded until a court appointed doctor said they were cured– meaning there was no trial for the offenders – as remand means pre-trail detention or imprisonment.

The logic underpinning this law seems both obvious and brutal: ensure the maintenance of wartime forces by identifying, classifying, targeting and containing a specified population deemed a risk to the nation – in this case prostitutes, vagrant women, or those surviving on transactional sex who have a venereal disease. In the law itself, the biological becomes synonymous and codified with that of the criminal.

From this brief example, we can come to understand how the early juridical public health project was one tied to the economics and geo-politics of new nationhood, as well as to notions of the purity of the population – specifically racial and class purity. Public health relied heavily on interventions and measures focused on surveillance,

21 Please not cite without permission: [email protected] classification, reporting, quarantine, and the incarceration of populations deemed deviant, diseased and risky (and often it still does today). Some scholars have argued that it was partially through these processes of inclusion and exclusion that the emerging Canadian nation defined forms of ‘respectable’ and normalized –white and middle-class settler citizenship (McGinnis, 1990; Kulba, 2008).

A few years later, one of the central figures in of the women’s hygiene and moral reform movement, Emily Murphy was recorded doing something that is important for our discussion. Emily Murphy became the first magistrate in the British Empire in 1916, and sat on her bench of the “women’s court” in Edmonton until 1931. As a judge, Murphy heard cases of women brought before her, mostly for prostitution and vagrancy. In a letter from Emily Murphy appends her first formal confinement order under the Alberta Venereal Disease Act (which was effective as of December 1919). On the form the space where the judge is to indicate what the offender did, the verb “did” was crossed out on the form and instead it was written that Eleanor Pattison of Edmonton:

“was infected with venereal disease within the meaning of the Venereal Disease Regulations, issued by the Provincial Board of Health of the said Province, and approved by Order-in-Council December 8th 1919 of said Province”

Therefore the very act of being infected became understood as a crime. Over the following years Murphy was recorded charging seventy-five cases in 1921, and sixty-six cases in 1922.

So what these historical cases highlight for us is that laws are historically contingent, and also laws change over time. There is a trajectory of HIV criminalization; it didn’t just emerge out of nowhere. The legal system is an organic system, not a static system. It is one that can be changed. And although common law and civil law can be traced back many centuries to European nations, within Canada this is a colonial legal system that was brought to this land along with

22 Please not cite without permission: [email protected] settlers, which has certain functions, that often have little to do with delivering or realizing justice – but are rather concerned with regulating certain populations.

In SUMMARY: So I have provided a whole range of stories and examples to highlight the problematic practice of criminalization of HIV non-disclosure and exposure, and how there is also a history of this sort of thing taking place in Canada.

To wrap up, I want to leave you with 9 key points that are important to take away. These are not in any particular order or importance or anything.

1) The criminalization of HIV exposure and non-disclosure are products of ongoing colonization • We see this with Clifford Bear, we see this with how the legal system was created and we see this with how many indigenous people are currently incarcerated.

2) The criminalization of HIV exposure and non-disclosure focuses responsibility on the individual with HIV • Responses to HIV used to be about community accountability and state accountability to provide services and supports. Today, under criminalization, the responsible person is the one with HIV, who is understood to be potentially a criminal at any moment.

3) The criminalization of HIV exposure and non-disclosure creates a chill effect and barrier to access for services for people living with HIV • This practice deters folks from trusting service providers and it also stops folks from talking openly about their health and mental health needs to those who are supposed to be helping them.

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• This environment also scares service providers who are uncertain of their obligations and a new conflict emerges between the professional liability and the ‘duty of care’ for those they work with, and the ‘duty to the law’, or the legal liability to report a client if they fear they could be having unprotected sex. • Also creates scenarios where doctors and nurses are compelled to testify against their own patients.

4) The criminalization of HIV exposure and non-disclosure is a product of white supremacy • As we have seen the application of these laws are asymmetrically targeting black men, men who are presented as sexual criminals, often from other places.

5) The criminalization of HIV exposure and non-disclosure is out of touch with the current science • Undetectability means we are no longer infectious (in many circumstances) • This means we need to interrogate what we mean by “harm” in a criminal law context – as this changes what it means to be exposed to HIV.

6) The criminalization of HIV exposure and non-disclosure disproportionally impacts women living with HIV • Power dynamics inhibit condom negotiation • Some women can’t achieve a low detectable viral load • This practice undermines the original purpose of sexual assault laws which were intended to protect women

7) The criminalization of HIV exposure and non-disclosure results in violence and intense stigma against people living with HIV • I’ve indicated a range of examples of this throughout the presentation

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8) The criminalization of HIV exposure and non-disclosure has not resulted in the reduced transmission of HIV • I didn’t get into this that much – but as most of you know – despite being one of the leading countries in the world for criminalizing HIV exposure and non- disclosure, HIV continues to consistently rise (despite our so called developed country status), with around 4000 new cases each year. • A majority of the criminal cases have nothing to do with transmission at all, but are rather about retribution, and incapacitation of positive people – rooted in fear and AIDS-stigma.

9) The criminalization of HIV exposure and non-disclosure is connected to the broader “tough on crime” and prison expansion project that is taking place across Canada • I didn’t talk much about prisons: but as most of us know, the conservative government has been rolling out massive prison expansion measures with an expected 2,752 new cells being built, or announced, over the next number of years. In 2011, on any given day in prison, including remand there are about 38,000 people who are incarcerated across all of the institutions. But since 2010, the federal in-custody population increased by almost 1,000 inmates or 6.8%, which is the equivalent of two large male medium security institutions. This amount is on the rise, and we know that there are massive issues of violence and racism, and ongoing colonization with our corrections institutions.

So finally: there I have given us a pretty violent and bleak outlook of the current situation. But that doesn’t mean things can’t change. Today I would encourage you to think through the practice of public health professionals and healthcare providers can work in the service of providing safety and security for people living with HIV, instead of contributing to a environment of fear and insecurity.

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Thank you!

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