There is a question that Saara Greene says comes up early when she speaks with HIV-positive women: “Would I get charged if I was raped?”
Greene, an associate professor of social work at McMaster University, said she and her team of community-based researchers hear this often during workshops with women about the criminalization of HIV non-disclosure.
That scenario has not happened, and would be unlikely, but Greene said she and her team hear it time and again as women who live with the virus explore how it impacts their everyday lives.
She said it highlights how the current regime surrounding the disclosure of HIV status can have a different – and sometimes bigger – impact on women than it does on men.
“The law, because it is blunt, wouldn’t contextualize experiences of violence against women and the barriers that women experience in violent relationships to either disclosing, or feeling like they could even get involved with someone,” said Greene.
The Supreme Court of Canada has ruled that the consent someone gives to sexual activity can be considered null and void if a partner fails to disclose, or lies about, his or her HIV status.
That can lead to a charge of aggravated sexual assault – the most common charge, although there have been others – so long as the sexual contact has either transmitted the virus to the complainant or put them at significant risk of contracting it.
The Supreme Court has said that someone who is HIV positive must disclose unless he – or she – used a condom and, on top of that, the amount of the virus in the blood is low enough to render the risk of transmission insignificant.
Justice Minister Jody Wilson-Raybould has said she is open to changing the law.
The Canadian HIV/AIDS Legal Network has counted at least 180 people charged for offences related to HIV non-disclosure in Canada since 1989.
Eighteen of them were women, with many being marginalized and having experienced some form of violence.
Advocates say the current criminalization of HIV non-disclosure ignores the power imbalance that can make it more challenging for women to reveal their status to their sexual partners, including the fear that it would one day be used against them.
“A ‘he said, she said,’ sort of thing,” said Greene.
One of the women charged is known only by her initials, D.C. Her case went all the way to the Supreme Court.
The woman learned she was HIV-positive in 1991 and, as a result of antiretroviral medication, the virus became undetectable.
She began a new relationship with a man in 2000, having sex once before she disclosed her HIV status, and they eventually lived together as a family.
They continued to have sexual relations, sometimes using a condom and sometimes not and her partner never contracted the virus.
About four years later, D.C. decided to end the relationship.
“She asked the complainant to leave the house. He refused. A few days later, D.C., accompanied by her son, went to the family home to remove her belongings. The encounter was violent. The complainant assaulted D.C. and her son. He was charged and convicted of assault,” Chief Justice Beverley McLachlin wrote in the October 2012 decision.
A few months later, the ex-partner went to the police about D.C.’s HIV status.
D.C. was charged with sexual assault and aggravated assault, on the ground that, according to her ex-partner, they had not used a condom when they had sex before she disclosed her HIV status, although D.C. said they did.
She was convicted at trial, but even the judge said he had trouble ignoring the element of revenge.
“The bitterness is palpable,” Quebec Justice Marc Bisson wrote in February 2008.
D.C. won an appeal, which was upheld by the Supreme Court.
There are other factors that are more likely to impact women, such as the requirement to use a condom, even if they have a low viral load.
That can be particularly complicated for women, advocates point out, who are ultimately not the ones who have to agree to wear them.
“A woman would need to be in a situation where she would feel able to ask her partner to wear a condom, to feel that the partner would respect her wishes to use a condom and not to feel like it’s a situation where conversations about condom use would make her feel unsafe,” said Greene.
She said that situation can arise often for women engaged in sex work.
Lenore Lukasik-Foss, director of a sexual assault centre in Hamilton, Ont., said there is irony in the way the criminalization of HIV non-disclosure impacts women.
“People might mistakenly believe that this might protect women, because you don’t want people to lie, you want people to disclose their status,” she said.
“This ability to disclose assumes a level playing field,” she said.