Decriminalization is when something that used to be illegal to do, is no longer a crime. You might have heard people talk about decriminalizing things like sex work, drugs, or HIV! In this article, we’re going to talk about what it means when we say we should “decriminalize HIV”.
Is having HIV illegal?
No, it’s not illegal to simply have HIV in Canada! People can’t be arrested or charged with anything just for being diagnosed or living with HIV. But, if someone does have HIV, they can be arrested or charged for doing certain things that people living with other STIs, or with no STIs, can’t be. That’s what people are usually talking about when they talk about criminalizing or decriminalizing HIV.
Specifically, the law requires that people living with HIV (PLWHIV) disclose their status to their sexual partners before having sex if there’s a “realistic risk for transmission”. If someone living with HIV has sex that may have a risk for giving or getting HIV (like vaginal or anal sex), they have to tell that person that they’re HIV-positive first. It’s illegal for them not to. That means if they don’t, their sexual partner can charge them with a serious crime! They might even face jail time. This can even happen if:
- They had no intention of harming their partner
- The sex they had was consensual
- Their partner did not get HIV
As of 2020, almost 200 people in Canada have been charged for not disclosing their HIV status to sexual partners. The most common charge for not disclosing HIV status to a partner is aggravated sexual assault. Charges like these only apply to not disclosing HIV status, and not to any other STI or communicable disease. This is why many feel that Canada (as well as other countries with similar laws, like Russia and the United States) has criminalized HIV. But some prefer to say that that they’ve criminalized HIV non-disclosure. And, some people use both of these terms interchangeably.
So, when someone says “decriminalize HIV”, usually what they mean is that they want an end to laws that criminalize HIV non-disclosure, and target PLWHIV in ways that people with other STIs or communicable diseases aren’t targeted.
Okay, but what’s a “realistic risk for transmission”?
What the law sees as a “realistic risk for transmission” can vary by province.
In Ontario, B.C., Alberta and Quebec, “realistic risk for transmission” usually means sex where one or more partners:
- Has a high viral load, AND
- Doesn’t use protection, like a condom, AND
- Has sex in a way that carries some risk for transmission (for example, vaginal or anal penetrative sex)
That means in these provinces, someone can’t be charged for not disclosing their HIV status as long as they have a low viral load and use protection. They also can’t be charged for having sex in a way that carries no risk for HIV (like oral sex or mutual masturbation). In Ontario and Quebec, they can’t be charged for not disclosing if they have a low viral load, OR if they use a condom!
However, in other provinces, the law is more open to interpretation. And legislators, prosecutors, and police have been slow to catch up with the most current recommended legal practices. This can be a problem, because many common legal practices today are still based on ideas about HIV that are decades old! Those ideas don’t reflect what we know about HIV today, like the fact that there’s no real risk for transmission when someone has an undetectable viral load!
Why should we decriminalize HIV? I want to know my partner’s STI status before having sex!
There’s nothing wrong with wanting to know someone’s STI status before you agree to having certain kinds of sex with them. Being honest with your sexual partners about your STI status is a good thing!
But, there are a lot of reasons why many people want to decriminalize HIV! Understanding these reasons is important for understanding HIV in the world we live in.
Criminalizing HIV non-disclosure contributes to stigma against HIV and people living with HIV.
STIs can affect anyone, regardless of their background, how often they’ve had sex, or anything else. Having an STI doesn’t make someone “bad”, “dirty”, or more “dangerous” than someone who doesn’t have an STI. But when it comes to HIV, there’s a lot of fear and misinformation out there! Lots of peoples’ ideas about HIV are based more on myths and stereotypes than on facts.
Treating HIV differently from other STIs makes it harder for people to see past the stigma. It also makes it harder to learn more about what it actually means to have HIV. The current laws are based on outdated information about HIV. They often don’t take into account things like U = U! U=U refers to the fact that when someone living with HIV has an undetectable viral load, they can’t give HIV to their sexual partners.
It also puts people living with HIV at a higher risk for violence and discrimination. And…
Being at a higher risk for violence and discrimination makes it harder for PLWHIV to disclose their status.
This can be especially true for people who are already at risk for violence and discrimination for other reasons, like BIPOC, LGBTQ+ people, sex workers, and people in abusive relationships. They might fear a partner lashing out upon learning about their status. Or they might worry about losing their job or their housing.
Because it makes it harder for PLWHIV to safely talk about their STI status, criminalizing HIV non-disclosure actually makes it harder for them to have safer sex, even when they want to! And finally…
Criminalizing HIV non-disclosure makes people less likely to get tested for HIV.
That’s because disclosure can only happen if someone is aware of their status. If they don’t know their status, the law doesn’t expect them to disclose it! People who have HIV but aren’t aware of their status are at the highest risk for giving HIV to someone else. That means that criminalizing HIV actually makes it a lot harder to prevent people from giving and getting HIV.
For all of these reasons, most experts agree that it’s necessary to decriminalize HIV.
Okay, but what if someone DOES give someone HIV on purpose, like through sexual assault? Shouldn’t that be illegal?
It’s important to understand that when it comes to every STI other than HIV, consensual sex which carries some risk is not seen as the same thing as sexual assault.
HIV advocates agree that sexual assault should be illegal! And, it already is. Sexual assault laws already apply to people living with HIV. They also apply just as much to people who don’t have HIV!
Laws that criminalize HIV non-disclosure don’t just cover cases of sexual assault. They also cover cases where the sex was consensual, and no assault occurred — just a level of risk, which can vary a lot based on things like someone’s viral load or the protection they use.
It’s common for people who don’t have HIV to worry about getting it. A lot of people have heard stories about people living with HIV who deliberately give HIV to their sexual partners as an act of abuse. But the fact is that these stories are mostly myths! They’re based on untrue and harmful stereotypes about PLWHIV, especially gay and bisexual men.
Lots of people cite the so-called “HIV patient zero”, a man named Gaetan Dugas, as being someone who lied to his sexual partners on purpose in order to give them HIV. But this story is just that — a story. It isn’t based on accurate information about Dugas or his life. It came out of the homophobic attitudes that some doctors had towards HIV and AIDS patients, many of whom were gay and bisexual men, in the early days of the HIV pandemic.
This doesn’t mean that PLWHIV can’t be abusive or dishonest, just like anyone else! But they’re not more likely to be abusive and dishonest because they have HIV. And, there’s no reason to have laws that only punish PLWHIV for being abusive or dishonest. The laws that already exist for everyone should be enough.
Wow, I never thought about it like that! How can I help decriminalize HIV?
There are lots of ways you can help us decriminalize HIV in Canada! Educating yourself about HIV, and how people can prevent giving or getting HIV, is a great place to start. If you’re sexually active, knowing your own HIV status and talking about HIV prevention with your partners can be part of this. Learn more about where to get tested in Montreal here!
You can also support organizations that work to decriminalize HIV, like the HIV Legal Network, CATIE, COCQ-SIDA, TOMS, and our parent organization ACCM! Many of these organizations take donations and welcome volunteers.
And, you can talk about why it’s important to fight HIV stigma and criminalization with others! Free, informed, and respectful discussion can go a long way to helping people understand these issues. Because criminalizing HIV non-disclosure makes HIV harder to prevent, everyone benefits from decriminalizing HIV, no matter what their STI status!