Please not cite without permission: [email protected] 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.