Legal Content: HIV Non-Disclosure and Canadian Criminal Law

The Supreme Court of Canada first addressed the question of criminal liability for not disclosing HIV-positive status in the case of R. v Cuerrier. The key question was whether non-disclosure could lead to a conviction for aggravated assault, because under Canada’s Criminal Code (s. 265), consent to physical contact is vitiated if obtained by “fraud.” Adapting the legal definition of fraud developed in the context of commercial transactions, the Court concluded that, to secure a conviction for sexual assault against an HIV-positive person for non-disclosure, the prosecution must prove three things beyond a reasonable doubt: (1) that the accused person committed an act that a reasonable person would see as dishonest; (2) that there was a harm, or a risk of harm, to the complainant as a result of that dishonesty; and (3) that the complainant would not have consented to the contact (i.e. sex) but for the accused person’s dishonesty. In applying this framework and having expressed its concern about not over-extending the criminal law, the majority of the Court concluded that the duty to disclose HIV would arise in the case of activity posing a “significant risk of serious bodily harm” and also explicitly stated that in the absence of such a risk, the duty to disclose would not arise. Writing for the majority of the Court (four of the seven judges who sat on the case) and partly in response to submissions of intervening HIV organizations, Justice Cory also suggested that “careful use of a condom might be found to so reduce the risk of harm that it could no longer be considered significant,” so there might be no duty to disclose in the event of condom use for penetrative sex. Two of the judges generally concurring with this majority opinion, including the subsequent Chief Justice of the Court, went further in a separate judgment, explicitly affirming that the HIV-positive person who does not disclose but engages in “protected sex” (i.e., penetrative sex with the use of condom) should not be captured by the criminal law of sexual assault.

Following the Cuerrier decision, the charge most frequently laid in subsequent years in cases of alleged HIV non-disclosure to a sexual partner was “aggravated sexual assault,” which is defined as including any assault that “wounds, maims, disfigures or endangers the life of the complainant” (Criminal Code, s. 268). This is the most serious of the three categories of sexual assault defined in the Criminal Code, and conviction for this offence carries a maximum penalty of life imprisonment and mandatory designation, presumptively for life, as a sex offender. In most of the prosecutions that followed Cuerrier, a majority of trial and appellate judges implicitly or explicitly adopted the suggestion in the majority judgment of the Supreme Court that condom use precluded criminal liability for not disclosing HIV-positive status. However, this was not universally the approach, and eventually the question of criminal liability for non-disclosure to a sexual partner returned to the Supreme Court of Canada, in a pair of cases that not only engaged the question of the legal significance of condom use, but also, in light of scientific developments following Cuerrier, the legal significance of the viral load of an HIV-positive person accused of non-disclosure.

In February 2012, the Supreme Court of Canada heard the cases of R. v Mabior from Winnipeg and R. v D.C. from Montreal, in which the Attorneys General of Manitoba and Quebec, with the vocal support of the Attorney General of Alberta as an intervener, argued for obligatory disclosure of HIV status in any sexual encounter, upon pain of criminal prosecution for aggravated sexual assault, regardless of the degree of risk of transmission (Canadian HIV/AIDS Legal Network 2012c). In its paired rulings released in October 2012, the Court refrained from imposing under the criminal law of assault this blanket obligation of HIV disclosure urged by the Attorneys General, and instead asserted that it would maintain the “significant risk of serious bodily harm” test from the earlier Cuerrier ruling. However, the Court went on to state that, in the context of HIV, this test is met if there is a “realistic possibility” of HIV transmission. As outlined by advocates for the human rights of people living with HIV, the Court has seemingly set the bar very low in defining when there is a “realistic possibility” of transmission, despite its statements of concern about not “extending the criminal law beyond its appropriate reach in this complex and emerging area of law.” The Court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if (i) the accused’s viral load at the time of sexual relations was low, and (ii) condom protection was used.” Given this statement and the facts of the cases on which the Court was pronouncing, the only sex that the Court has clearly recognized as not posing a realistic possibility of HIV transmission is penile-vaginal sex that takes place when both a condom is used and the person living with HIV has a “low” viral load, under 1,500 copies/mL. If both of these conditions are met, then there is no obligation under the criminal law to disclose HIV-positive status (Canadian HIV/AIDS Legal Network, 2012c). This approach deviates from the suggestion by the majority of the Court in Cuerrier, largely followed by lower courts, that condom use alone should or might suffice to avoid criminal conviction. This departure from the Cuerrier suggestion, which raises the bar higher and substantially extends the potential application of the law of sexual assault to PHAs in a wider range of circumstances, was one of several criticisms of the decision advanced by HIV advocates. The Supreme Court did not clarify how the requirement to disclose in the case of a “realistic possibility” of transmission applies to any sexual activity other than penile-vaginal sex (Canadian HIV/AIDS Legal Network, 2012c).

The Court’s decisions were widely criticized by HIV advocates (e.g., Canadian HIV/AIDS Legal Network et al., 2012b) and have raised concerns in other quarters as well. It should also be noted that the Court’s pronouncements in Mabior and D.C. are likely not the last word on the matter. Arguments about the parameters of the law, including the interpretation and application of the Court’s “realistic possibility” threshold articulated in these cases, continue in the courts, between community advocates and prosecutors, and in the legal and other academic literature. For one thing, the Supreme Court itself explicitly stated that the law should be open to “adapting to future advances in treatment,” which could further affect both the risks of HIV transmission and the harm associated with HIV. In a couple of subsequent reported proceedings, trial court judges have taken the unusual step of outlining in detail their concerns with, and objections to, the Supreme Court’s approach in Mabior/D.C. In refusing to convict an HIV-positive accused who had an undetectable viral load but did not use a condom, they have adopted a slightly less expansive approach to criminalization by underscoring that the Supreme Court referred to the requirement of both condom use and low viral load with the caveat that this was “as a general matter.” Furthermore, they have insisted that the prosecution retains the burden of proving beyond a reasonable doubt that there was a “realistic possibility” of transmission and have found on the medical evidence before them that there was no such realistic possibility in the case of an undetectable viral load. (See the decisions in R. v J.T.C and R. v J.T.C.) There has also been ongoing debate among legal academics concerned with human rights, including among feminist scholars and advocates, about the tensions raised between protecting a robust conception of consent in the law of sexual assault necessary to reflect women’s equal right to sexual autonomy and over-extending the law of sexual assault in ways that unjustly prosecute people, including women, living with HIV (Mathen and Plaxton Reference Mathen and Plaxton2011; Grant Reference Grant2011; Grant Reference Grant2013; Shaffer Reference Shaffer2013; Symington Reference Symington2013; Buchanan, 2015; Canadian HIV/AIDS Legal Network, 2015).

Studies of Views on HIV Criminalization

Studies on views of criminalization of HIV have typically surveyed the opinions of either gay and bisexual men (both HIV-positive and HIV-negative) or people living with HIV from different risk groups. The largest study, done in the United Kingdom by Dodds and Keogh (2009, 6,9), focuses on the criminalization of the transmission of HIV, rather than the criminalization of non-disclosure of HIV-positive status; this reflects the state of the criminal law in England and Wales, under which criminal liability arises only for actual transmission, not for exposure. They asked 8,252 men who have sex with men, “Do you think it is a good idea to imprison people who know they have HIV if they pass it to sexual partners who do not know they have it?” and found that more than half of respondents overall agreed with the statement, but only a fifth of HIV-positive men agreed. Overall, Dodds and colleagues found some variation in attitudes toward criminalization: those who were younger, untested, less educated, less urban, and more behaviourally bisexual were more likely to agree with the more punitive position.

A study by Horvath, Weinmeyer and Rosser (Reference Horvath, Weinmeyer and Rosser2010, 1224) of 1,725 men in the United States who have sex with men shifts attention from actual transmission to (non)-disclosure, in line with the law in much of North America. Horvath and colleagues found that “sixty-five percent of respondents believed that it should it be illegal for an HIV-positive person who knows his or her status to have unprotected sex without telling the other person of their HIV-status.” They also found some variation in opinion, with support for criminalization of unprotected sex without disclosure associated with being younger, HIV-negative or unknown sero-status, less educated, and not gay identified. Unless otherwise specified, these studies refer to “unprotected” sex as penetrative sex, generally anal or vaginal, without a condom. More recently, there has emerged a substantial body of evidence establishing that the use of antiretroviral medications, whether as treatment by persons living with HIV that succeeds in suppressing viral load or by HIV-negative persons as pre-exposure prophylaxis, can and does have a substantial protective effect that dramatically reduces the risk of transmitting or acquiring HIV (Loutfy et al. Reference Loutfy, Tyndall, Baril, Montaner, Kaul and Hankins2014). As a result, there is a current move toward referring to “condomless” sex rather than “unprotected sex” in recognition of risk reduction alternatives to condoms.

Three studies, one in the United Kingdom and two in the United States, have investigated in particular the views of people living with HIV on criminalization. Dodds and Keogh (Reference Dodds and Keogh2006, 316–17) conducted twenty focus groups with 125 HIV-positive people in England and found they expressed considerable “concern that criminalization had weakened the message that sexual health should be the responsibility of both consenting partners during sex” but “a minority of respondents did hold that criminalization may be justified” in some instances. Klitzman et al. (Reference Klitzman, Kirshenbaum, Kittel, Morin, Daya, Mastrogiacomo and Rotheram-Borus2004, 49) interviewed seventy-six HIV-positive people in four US cities and reported that “most participants supported the criminalization of non-disclosure of one’s HIV-positive status to sexual partners” in some circumstances. Galletly et al. (Reference Galletly, Glasman, Pinkerton and DiFrancisco2012, 2137), in a survey of 493 HIV-positive in New Jersey, found even more punitive views, with 87 percent believing that unprotected vaginal or anal intercourse with an uninformed partner should be a crime.

A national public opinion poll conducted in Canada in 2011 found that 82 percent of Canadians agreed with the statement, “People living with HIV/AIDS have the same right to be sexually active as long as they inform their sexual partners about their HIV/AIDS status,” and at the same time, 71 percent agreed that “People living with HIV/AIDS have the right to be sexually active as long as they practice safe sex” (Calzavara et al. Reference Calzavara, Allman, Worthington, Tyndall and Adrien2012, 16). Furthermore, 74 percent agreed it is “appropriate to imprison someone who knowingly did not divulge their status to a sexual partner,” even though “fewer than half agree that criminal prosecution is an effective way to stop or deter people from transmitting HIV to their sexual partners.” A national survey of gay, bisexual, and other men who have sex with men that had a particularly strong representation of rural and heterosexually-married men, found that 61 percent agreed that “there should be a law that requires people who are HIV-positive to disclose their HIV status to their sexual partners,” but at the same time, only 30 percent thought criminalization could be justified if a condom were used, and only 30 percent believed that “criminal prosecution is an effective way to stop or deter people from transmitting” HIV (Myers et al. Reference Myers, Allman, Adam, Alexander, Blais, Calzavara, Remis, Marchand and Maxwell2013, 62–63). The study reported here represents the first Canadian study, to our knowledge, exclusively reporting on the views of people living with HIV, as well as being the largest survey to date of people living with HIV on the issue of criminalization.

Not surprisingly, the existing published research finds that people are far from unanimous in their views on the role of criminalization in instances of HIV (non)-disclosure or transmission, but in several places, non-disclosure coupled with condomless sex attracts high levels of disapproval, including agreement that criminal prosecution may be justifiable, while the use of condoms significantly reduces support for prosecution.

Demographic Characteristics

Table 1 shows the demographic characteristics of study participants from the three data sources.

Table 1 Participant demographics

OHTN = Ontario HIV Treatment Network; PSHP = Positive Spaces, Healthy Places.

Between 74 and 81 percent were male, depending on data source; 19 to 26 percent were female. The majority were between 40 and 59 years of age. Fifty-seven to 65 percent were gay, and 65 to 73 percent white, with significant representation of people identifying as of African, Caribbean, or Black origin (13–22%). Modal income was low, with sizeable numbers (43–70%) reporting less than $20,000 in income per year despite 57 to 68 percent reporting postsecondary education.

Information Sources and Awareness of the Law

Participants in the two cohort studies were asked a basic question about their awareness of the law concerning HIV: Have you heard that Canadian law requires you to tell your sexual partners that you are HIV-positive, at least in some circumstances? The distribution of answers is provided in Table 2.

Table 2 Distribution of answers to the question: Have you heard that Canadian law requires you to tell your sexual partners that you are HIV-positive, at least in some circumstances?

PHSP = Positive Spaces, Healthy Places; OCS = Ontario HIV Treatment Network Cohort Study.

Overall, awareness of the current law was high. This was followed by a question on sources of information on HIV and the law: Have you received any information about disclosure, responsibility, or other legal issues from any of the following sources, whether through websites, public events, printed information, or counselling? The distribution of responses is given in Table 3.

Table 3 Distribution of responses to the question: Have you received any information about disclosure, responsibility, or other legal issues from any of the following sources, whether through websites, public events, printed information, or counselling?

PHSP = Positive Spaces, Healthy Places; OCS = Ontario HIV Treatment Network Cohort Study.

Study participants could check off more than one source so percentages add to more than 100 percent.

The most frequently named source of information about HIV and the law is the media. The gay press figures prominently among the sources named. OCS respondents name health-care sources second (physician, clinic, nurse) and then AIDS service organizations (ASOs). PSHP respondents name ASOs second, followed by other PHAs and HIV clinics. These differences may reflect different recruitment strategies of the two cohort studies, as the OCS is a clinic-based cohort while the PSHP relies on ASO networks to identify potential study participants. These findings might be compared with Galletly and colleagues (Reference Galletly, Glasman, Pinkerton and DiFrancisco2012), who surveyed 384 PHAs whose awareness of the law was less (76%) than this Ontario sample, and who cited ASOs more often than the general media as the source of information in the area. Overall the sizeable portion of PHAs in this study who report little or no formal instruction in the area may also reflect the fact that most were diagnosed before criminalization became a prominent public issue, in the decade preceding the study.

Statistical analysis (Pearson Χ ²) of the PSHP responses shows that those who are employed (p=0.015), on disability (p=0.011), or volunteering (p=0.003) are more likely to name an ASO as a source of information about disclosure, responsibility, or other legal issues than those who are unemployed (p=0.017). Websites are named more often as information sources by those who are employed (p=0.005) and better educated (p=0.001). Hearing from another HIV-positive person is mentioned more often by those on disability (p=0.003) and Aboriginal people but less often by people of African or Caribbean descent (p=0.039).

The interviews confirm this overall pattern. (Throughout this report more common remarks from interviews are presented first, followed by less common remarks.)

Those who are better connected with ASOs do mention them as sources of information on HIV and the law.

And a few mention their physician:

The interviews reveal some divergence in the nature of the coverage of criminalization issues by language. Anglophones frequently mention the Aziga case from Hamilton, Ontario, and some, the earlier prosecution of professional football player Trevis Smith in Regina, Saskatchewan. In 2009, in a high-profile case, Johnson Aziga, a Ugandan immigrant to Canada (whose national origin and immigrant status repeatedly formed part of the media reporting of the case), was found guilty of two counts of murder in the first degree, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault for transmitting HIV to two women and for not disclosing his sero-status to several others. Previously, in 2007, Smith was convicted of two counts of aggravated sexual assault; he was deported to the United States in 2009.

Other high-profile cases have also attracted considerable, often sensational, media coverage, portraying the HIV-positive accused in graphic terms as sexually irresponsible, at best, or even as reckless or malicious predators, but these were not explicitly referenced by interviewees. These include the Ssenyonga case in the early 1990s, discussed at length by Miller (Reference Miller2005), in which a Black man of African descent, whose race and immigrant status featured prominently in the media coverage, was charged in relation to HIV non-disclosure to several (white) female partners. More recent cases have included the prosecution of an HIV-positive woman, in relation to sexual encounters with willing soldiers at an Ontario army base, who was subsequently prosecuted in Barrie, Ontario, notwithstanding her undetectable viral load, including for briefly receiving oral sex, a proceeding that attracted condemnation and courthouse protests by HIV activists (Canadian HIV/AIDS Legal Network et al., 2013). Ontario, which, in comparison with other provinces and the distribution of PHAs across Canada, has witnessed a disproportionate number of criminal prosecutions for HIV non-disclosure, also was the site of a series of prosecutions in Ottawa and in the Kitchener-Waterloo region against an HIV-positive man that gave rise to ongoing, sensational media coverage, including regular repetition in stories of his self-description as a “poz (HIV-positive) vampire” (Caldwell Reference Caldwell2013).

Francophones more frequently cited the case of “Diane” (not her real name) from Longueuil, the accused in the Quebec case of R. v D.C. that was ultimately decided by the Supreme Court of Canada in October 2012 (in tandem with the Manitoba case of R. v Mabior, as noted above), and whose story was featured in the documentary film Positive Women: Exposing Injustice, released the same year (Canadian HIV/AIDS Legal Network, 2012a). These cases often created quite different visions of the workings of the criminal justice system. While Aziga had few defenders, Diane provoked a good deal of sympathy.

The interview was completed before her conviction was overturned by the Supreme Court of Canada, not on the substance of the law, but because of errors by the trial judge in interpreting the evidence.

Perceptions of Media Coverage

Despite the reliance on media as an information source, views on mainstream media coverage are ambivalent. The primary theme emerging from interviews is a sense of media coverage as sensationalized and one-sided, often portraying HIV-positive people as criminals looking to cause harm. In an environment where police and press have at times published the names and pictures of HIV-positive people accused of non-disclosure or other charges related to their HIV status well before going to trial (Kirkup Reference Kirkup2015), many individuals feel the media are not supportive of people living with HIV and that their main goal is to sell papers. A secondary characterization of media coverage is that the media do a good job of bringing attention to this issue, but often “miss the point” or present incomplete or misleading information. A number of these individuals feel the gay press does a better job of supporting PHAs in the current public climate. Less common is the view that media coverage is objective, fair, neutral, or adequate. These respondents state that the media are simply stating the facts but also note how they could do a better job of explaining the details and complexities of HIV cases.

For example, study participants remarked in interviews that:

Participants thought the media could do a better job explaining the details and complexities of the cases and play a role in educating the public about HIV:

Others observe that the majority of the cases in the media involve heterosexual conduct and that the gay press does a better job of supporting PHAs. Finally, some remember media coverage this way:

PHA Views on Criminalization: Survey of Cohort Study Participants

In this study, a series of questions explored several different scenarios with participants in the OCS and PSHP cohort studies. The results show that the largest proportion of PHAs participating in these cohort studies believe that criminal law should not be applied in cases where there is no disclosure, but protected sex (i.e., penetrative sex with a condom) occurs. Respondents do believe that “someone with HIV should be charged with a crime and perhaps sent to prison” in cases where there is no disclosure before unprotected (i.e., condomless) sex, and for not disclosing if “it’s clear that the person wanted to pass HIV to their partner” that is, there was actual intent to cause harm. The question “Do you think someone with HIV should be charged with a crime, and perhaps sent to prison, for having unprotected vaginal or anal sex without telling sexual partners he or she has HIV before having sex?” proves to be the critical breaking point for PHAs in drawing the line in the criminalization debate. In the OCS cohort, 48 percent disagree with the proposition that people should be prosecuted for non-disclosure in cases of protected sex (i.e., penetrative sex with the use of condom), as opposed to 40 percent who agree with prosecution in such circumstances. In the PSHP cohort, the majority of respondents (54%) disagree with prosecution in cases of protected sex (i.e., with condom use), and only 28 percent agree with criminalization in cases where a condom is used.

The results are shown in Table 4.

Table 4 Views of people living with HIV on criminalization

Statistical analyses of the PSHP cohort show no significant differences by gender, sexual orientation, or ethno-cultural background on these questions, except for Aboriginal PHAs who are somewhat more punitive in their views regarding non-disclosure. Though the order of magnitude for the most part is not great, the larger OHTN cohort [OCS] does show a statistical difference along these dimensions. Among HIV-positive people in Ontario, gender and sexual orientation are highly collinear variables with almost all of the women being heterosexual and the majority of men gay or bisexual. As well, most African, Caribbean, and Aboriginal PHAs are heterosexual while a minority of the gay and bisexual men have a racialized identity. For the key question, “Do you think someone with HIV should be charged with a crime, and perhaps sent to prison, for having unprotected vaginal or anal sex without telling sexual partners he or she has HIV before having sex?”, agreement is significantly higher (Pearson Χ ², p<0.01) among heterosexual men (83%) and women (79%), than among bisexual men (72%) or gay men (60%). Women are similarly somewhat more likely to agree that HIV status should be disclosed to a sexual partner even if viral load is undetectable (and hence risk of transmission approximating zero) (79% versus 72% of men) (p=0.02), that a sexual partner should be charged if he lied about his status (85% versus 60% of men) (p<0.01), and that charges could be justified for not disclosing even if a condom was used (51% versus 37% of men) (p<0.01).

The ethno-cultural breakdown from the OCS on the key question of whether “someone with HIV should be charged with a crime, and perhaps sent to prison, for having unprotected vaginal or anal sex without telling sexual partners he or she has HIV before having sex,” shows that 76 percent of respondents identifying as Black, African, or Caribbean, and 74 percent of Asian, Latin American, or Middle Eastern respondents, agree, while 65 percent of white people and 67 percent of Aboriginal people agree (p<0.01).

There are also significant differences according to the educational attainment of respondents. More educated respondents show less punitive views. In the OCS cohort, 79% of respondents with less than a high school education support criminalization for non-disclosure in the case of unprotected sex (i.e., without a condom), but this support declines to less than half (49%) among those with post-graduate education (p<0.01).

In the OCS cohort, punitive views decline with time being sero-positive: 83% of those diagnosed less than six years ago agree with the criminalization of non-disclosure in cases of unprotected sex, but this falls to 69% of those diagnosed more than six years ago. While majorities agree with criminalization in this instance regardless of time living with HIV, this finding suggests that with time, PHA views may moderate, perhaps because, in the early period, their relationship to the question of criminal prosecutions is more influenced by a focus on the circumstances of becoming infected, whereas in the latter period, the possibility of being vulnerable to criminal prosecution is accorded greater weight. There may also be a historical factor at play in the results given the timing of data collection for this study: those who were infected within the last six years were infected during a time when the intensity of criminalization for HIV non-disclosure, and consequent media coverage, were higher than in the earlier period (Mykhalovskiy and Betteridge Reference Mykhalovskiy and Betteridge2012).

In addition, having had a casual partner in the last six months makes a difference to PHAs; those who have recently had a casual partner are less punitive in their views. Not disclosing HIV-positive sero-status before having condomless sex should be criminalized according to 73% of those who have not had a casual partner; in contrast, only 54% of those who have had a casual partner in the last six months agree (p<0.01). As well, actively lying about one’s HIV-positive status, as opposed to simply remaining silent, is viewed more punitively by those who have not had a casual partner (76%) than by those who have (65%) (p=0.02).

The greatest variation in opinion occurs in relation to the question of non-disclosure in the case of being the recipient of oral sex, with support for criminalization in the PSHP cohort ranging from:

• • 51% among heterosexual men, 50% among heterosexual women, 31% among bisexual men, and 21% among gay men (p<0.0001);

• • 50% among Aboriginal people, 44% among African and Caribbean people, and 30% among white people (p=0.019); and

• • 50% among respondents with less than high school education to only 20% with a four-year post-secondary degree or more education (p=0.014).

The strong gradient by sexual orientation may be related to the thirty-year history of safer sex training provided by ASOs that has instructed gay and bisexual men that oral sex is “low risk” for HIV transmission compared with the higher risk associated with anal sex. Heterosexual respondents appear to assimilate oral sex to attitudes about sex in general, not making a distinction about relative risk. Turning to the OCS data and calculating odds ratios for statistically significant variables for the same question shows that men were only 0.36 (95% confidence interval [CI] = 0.26–0.50) times as likely as women to agree that criminalization would be appropriate, African and Caribbean people were 2.72 (95% CI = 1.99–3.71) times as likely as white people, people with less than high school education 2.12 (95% CI = 1.41–3.20) times as likely as people with post-secondary education, and people with casual partners 3.32 (CI = 2.31–4.78) times as likely as those with regular partners.

Views on Criminalization: Qualitative Interviews

The interviews show that HIV-positive people may respond to questions on criminalization either in terms of the actions of another person that resulted in their infection, or in terms of potentially infecting someone else. For example,

There is a contingent of opinion that criminalization is justifiable in some cases. In several instances, the Aziga or Smith case appears to be the touchstone for the opinion expressed, suggesting that much of the framing of questions of HIV and the law for people living with HIV, not to mention the larger public, shows the influence of media attention to a few high-profile cases. In a number of these examples, interviewees clearly wish to distance themselves from behaviour deemed to be extreme or egregious and reaffirm a commitment to HIV prevention.

Some argue for a potential deterrent effect of prosecution.

The greater representation of female voices in this section is consistent with the OCS findings of somewhat more punitive views held by women and it is consistent with the overall pattern of prosecutions, where complainants are disproportionately women in heterosexual relationships, though they account for only about a quarter of HIV-positive people in Ontario according to epidemiological data. These findings suggest that PHAs are not exempt from the dominant discourses circulating in the larger society at the intersection of gender and responsibility. Women appear to be more readily accepted as victims when aligned with traditional narratives of the sexual purity or virtue of “good” women, while at the same time they remain vulnerable to historic constructions of “bad” women as vectors of disease and as dangerous to men.

Most of these cases have not involved actual transmission of HIV; as noted above, Canadian criminal law extends beyond that of some other jurisdictions (and the limits recommended by UNAIDS and others such as the Global Commission on HIV and the Law), applying also to non-disclosure of HIV. Legal proceedings rest on a deeper politics of blame and innocence that index a longstanding social distinction assigning some HIV-positive people to the status of “innocent victim” and others, often tacitly, to the status of the always, already guilty. In the early days of the epidemic, these distinctions were often overt in public depictions, with women, children, and haemophiliacs assigned to the “innocent” category while gay men, people who use drugs, sex workers, men of colour, and foreigners or immigrants were relegated to the latter category and seen as “deserving” of, or vectors of, infection (Weait Reference Weait2007; Adam et al. Reference Adam, Elliott, Husbands, Murray and Maxwell2008; Persson and Newman Reference Persson and Newman2008; Hoppe Reference Hoppe2014). Though less overt today in Canada, these distinctions have not entirely disappeared. In interviews, gay men and people who use drugs often typify HIV as a silent tragedy that has befallen their communities; “both groups are offered ready-made moral recipes assigning them personal responsibility for their illness” (Adam and Sears Reference Adam and Sears1996, 71). Members of groups that are not accorded the “benefit of the doubt” by the public politics of blame are perhaps more hesitant to appeal to the courts to judge them “innocent” in the face a historical legacy that has closely identified them as morally suspect and a blameworthy source, rather than a “victim,” of HIV.

Diversion Not Punishment

A significant set of study participants believe that imprisonment is simply not the solution to problematic behaviour.

In some instances, this view is grounded in a suspicion of the state based on its historically repressive regulation of gay sexuality.

Among those not granted the status of “innocents,” the HIV epidemic is often conceptualized as a shared tragedy that has befallen the community as a whole.

Others envision the possibility of diversion programming that moves the legal system’s response away from punitive to educational and preventive strategies.

This survey of PHAs regarding HIV and the law shows considerable diversity of opinion. Variability in opinion is most closely associated with gender, sexual orientation, level of education, and with “grey area” issues such as the risk associated with oral sex or with penetrative vaginal or anal sex protected by the use of a condom.