In the past few weeks, there have been two further arrests in Canada for sex without condoms and disclosure. In Alberta, a 32 year-old Calgary man faces eleven counts of aggravated sexual assault based on a short-lived relationship he had with a woman over a couple of weeks: he was charged for each time they had sex. And in Ontario, police issued a warning/’fishing expedition’ to women who may have had sex with a 32 year-old Peel man who they arrested and charged with aggravated sexual assault and sexual interference for having sex with someone under-age.
In the first of two articles to be published in Canada’s GLBT paper, Xtra, Dale Smith examines the issues facing HIV-positive Canadians (including those who may be unaware they are infected) as arrests and prosecutions continue unabated.
The Xtra article includes interviews with Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network; Glenn Betteridge, a legal and policy analyst who has done work with the Ontario HIV Treatment Network; Isabel Grant, law professor at the University of British Columbia; and Barry Adam, senior scientist and director of prevention research with the Ontario HIV Treatment Network.
Highlights include these quotes:
“Canada was one of the first countries to start laying charges with respect to HIV exposure or transmission. It was the first Supreme Court in the world that had ever considered the issue.”
Alison Symington on Canada’s role as world leader in criminalisation.
“We’re starting to understand more and more about the likelihood of transmission of HIV, and it’s not as high as I think some people assume that it is. Particularly if there’s anti-retroviral medications, it’s not immediately obvious that one act of sexual intercourse is likely to cause someone’s death. I think it’s a real stretch to make this murder, not only on policy grounds, but also on the narrow interpretation of Section 231.”
Isabel Grant on the lack of relevance between sexual HIV transmission and Section 231, which says that death as a result of aggravated sexual assault becomes first-degree murder.
“My worry is that the courts’ fixation on the issue of disclosure presumes that they’re discouraging transmission, but I don’t think that it works out in real life quite the way they think it does. People who disclose actually have a poorer record of safe sex than those who don’t, and [that] makes a certain amount of sense because disclosure is about trying to figure out if you can sero-sort or not, to find out if the other person is the same sero-status that you are. It becomes an invitation for unsafe sex.”
Barry Adam on why mandating disclosure is harmful.
“The law says that if you are suspicious, and you deliberately close your mind to the possibility of finding out, that’s considered wilful blindness and we treat you the same way as if you know. In this context, let’s say I’m not going to get tested for HIV because I really don’t want to know if I have it, because then nobody can charge me for passing it on. If that suspicion arises in your mind, and you deliberately close your mind to finding out, the law says you’re just as blame worthy.”
Barry Adam on not testing to avoid prosecution.
To read the full article on the Xtra website, click here.