In Canada, it is illegal for HIV-positive people to have sex without disclosing their status, in some cases even if they use a condom and even if no one gets infected. Canada is now one of the top 10 countries in the world for arrests and prosecutions of HIV-positive people per capita, and its 48,000 HIV-positive residents are in a state of threat and confusion. To date, 146 people have been charged. A 2012 Supreme Court decision affirmed laws against nondisclosure. (In the United States, 34 out of 50 states have some law against people with HIV, criminalizing behaviors from nondisclosure to spitting, but no state case has made it to the U.S. Supreme Court and there is no federal standard.)
Currently 30 men who had sex with other men are facing these charges. Most cases involve men who did not disclose to their female partners, and 78 percent have resulted in convictions and in almost all cases jail time. Courts have been lax in demanding phylogenetic testing to determine that both parties carry the same strain of HIV. Some of those convicted have faced lengthy prison terms even when the partner did not become infected.
Activists have lost all legal appeals and have been trying to work with the courts to establish prosecutorial guidelines, but they have been unable to achieve significant progress.
HIV criminalization is denunciation-based: The state encourages people who are HIV negative to bring charges against HIV-positive sexual partners who they say have not disclosed their status. To stop prosecutions before they start, the activist group AIDS Action Now recently introduced a campaign called “Think Twice.” It’s aimed at potentially upset or anxious partners who may want to get back at their lovers even if they were not infected. It means think twice about calling the police.
The Canadian path to criminalization has involved a combination of sensationalist tabloid media, high-profile court cases, and paranoia about immigrants. In 1990, a Ugandan immigrant, Charles Ssenyonga, was ordered by Toronto Public Heath to stop having sex after having infected three women. He died in 1993 before being fully charged.
In 1998, the Supreme Court of Canada ruled that Henry Cuerrier, a white man, had committed a crime when he had unprotected sex with two women who did not become infected. The Cuerrier conviction was upheld by the Supreme Court and produced a ruling that HIV nondisclosure can be considered an assault.
Johnson Aziga, also a Ugandan immigrant, was diagnosed in 1996 and charged in 2008. He acknowledged having had unprotected sex with 11 different women without disclosing his status. Seven of them became infected and two died of AIDS. In 2011 Aziga became the first person in the world to be convicted of murder for infecting someone with HIV. He was jailed indefinitely under the Dangerous Offender Act because he was judged to be at a high risk to again have unsafe sex.
Like Aziga and Ssenyonga, 52 percent of heterosexual men charged have been black, even though blacks make up only 6 percent of HIV-positive men in Canada. According to Tim McCaskell, of AIDS Action Now, “The trope of the sexually predatory diseased black immigrant helped marshal racism to harden public opinion behind HIV criminalization.”
In the Mabior decision, the Canadian Supreme Court redefined safe sex.* The justices placed the emphasis on viral load, ruling that people are required by law to disclose their HIV status, even if they use condoms, unless they have a low level of HIV circulating in their body. This 9–0 decision reversed decades of global policy defining safe sex principally by condom use.
The current treatments for HIV repress viral load with the goal of testing at a level of “undetectable.” Low viral load is so effective in preventing HIV transmission that the U.S. Centers for Disease Control and Prevention announced in January that since sex with low viral load without a condom is no longer necessarily “unsafe,” it will now officially be called “condomless sex.” The new AIDS binary isn’t between HIV positive and negative. It’s between suppressed and unsuppressed.
Implicit in the recent court rulings is the idea that HIV-negative people are not responsible for protecting themselves from HIV. This runs counter to the global message of three decades of AIDS prevention work emphasizing that men and women stay negative by communicating with their partners to have safe sex, historically defined by condom use. Raising the bar to require disclosure creates a new level of stigma on the HIV positive.
“In order to make a police complaint,” write legal scholars Glenn Betteridge and Eric Mykhalovskiy, “people must understand themselves to have experienced a potential criminal wrong.” Edwin J Bernard, the coordinator of the HIV Justice Network, a United Kingdom–based criminalization watchdog, confirms that “Canada is definitely a world leader in terms of the police and the media collaborating to ensure that every arrest is covered in the media as a ‘public health warning’ especially because it also does double duty as a ‘fishing expedition’ for further potential complainants to come forward.”
There are currently 34 million people in the world who are HIV positive. Every one of them was directly or indirectly infected by someone. Yet, Canada has decided to respond to this common human experience with punishment. According to some providers serving the queer and HIV communities, criminalization itself creates more infections. “Laws criminalizing HIV nondisclosure make people at risk fear getting tested” says Morgan Page, trans community services coordinator at Toronto’s LGBT center. “They know that if they test positive, they can face not only stigma and sexual exclusion but also criminal charges whether or not they use condoms or actually do disclose.”
To date Canada has accused 16 women of nondisclosure, and 14 have been charged, including one who was charged three times. Aboriginal women, who are only 4 percent of the population, make up almost half of positive women in Canada. “Laws based on viral load hit women particularly hard,” says McCaskell. “If I want to know my viral load, I can just go to my doctor, but an aboriginal woman up north may not have access to getting her blood work done.” Only two women have been convicted of infecting a man during sex, in both cases women of color. Suwalee Iamkhong, a Thai immigrant, and June Tippeneskum, an aboriginal woman, were convicted of having infected their husbands. One was deported, and the other imprisoned for three years. In 2006 Canada became the first country in the world to prosecute a woman for transmitting HIV to her child.
Marilou Gagnon, associate professor of nursing at the University of Ottawa, sits on a number of governmental committees related to HIV. “There is a paradigm shift,” she says, “from treatment as treatment to treatment as prevention, using the same pills, but with different goals.” Gagnon says that the state now believes that “social approaches,” like condom use, have failed, “which positions biomedical approaches as the new solution.”
Mikiki, who goes by one name, is an HIV/AIDS harm reduction outreach educator who has to walk a fine line every day between helping clients and gathering data for enforcement. At the Central Toronto Community Health Centres he talks to clients about criminalization before testing. “I’ve had conversations with folks about what kinds of information we need to collect and how we do contact tracing and I try to keep my language of the process as transparent as possible so that people know what they’re getting into and can navigate with a little more autonomy.” Canadian courts upheld in 2011 that there is “no freestanding right to dignity or privacy,” and therefore it is legal to reveal HIV status. He informs clients that anonymous hookups can’t be traced, as both information and suggestion, so that they are prepared when asked for the names of people they’ve had sex with, should they test positive.
Overall, gay rights are far more advanced in Canada than in the United States. Canada has national same-sex marriage, adoption, and anti-discrimination laws. But the relatively new respect for some aspects of gay culture divides the queer community. Now some have social approval and recognition for being in traditional family structures that straight people can understand and identify with. Gay rights have produced new insiders and new outsiders. The newly enfranchised include LGBT citizens and HIV-negative people, who are now separated from noncitizens and the HIV positive by access to the power of the state. Advancing intimacy between gay people and the state may soon undermine the community’s grass-roots ethics of personal responsibility.
*Correction, June 4, 2014: This article originally misnamed the Canadian Supreme Court decision that redefined safe sex. (Return.)