Background
The Criminalization of HIV
Everyday understandings about HIV non-disclosure
Methods
Study setting
Recruitment and data collection
PERSPECTIVES ON HIV CRIMINALIZATION | |
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In Canada, we have a law that criminalizes HIV+ individuals who do not disclose their HIV + status to sexual partners unless they use a condom AND have a ‘low’ viral load. During this section, I am not asking about what you have done in the past, but am interested in understanding your opinions on this issue. Have you come across any information related to this law? | ▪ Were you aware of this law? ▪ What do you think about this law? ▪ Where did you hear this information? ▪ Can you tell me about any accounts of HIV non-disclosure that might stand out in your memory? |
In Canada HIV non-disclosure has most often been prosecuted as aggravated sexual assault. Aggravated sexual assault carries a sentence of jail time up to a maximum of life imprisonment and registration on the Sexual Offender Registry. This is one of the most serious crimes in the Canadian Criminal Code. In Canada, over 150 people have been prosecuted for HIV non-disclosure to date, even where no transmission has taken place and where in many cases the risk of transmission was considered to be very small. What are your initial thoughts on how HIV is treated in Canada in these sorts of circumstances? | ▪ Tell me about your overall thoughts about this law. ▪ How do you think this law influences people living with HIV? ▪ Do you think that this law is unfair for certain groups of people? ▪ Do you think everyone is able to disclose their HIV status when they are going to have sex? |
Analysis
Findings
(n) | (%) | |
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Living with HIV | ||
Yes | 30 | 50% |
No | 30 | 50% |
Ethnicity | ||
Indigenous/First Nations/Metis | 31 | ~ 51.67% |
White | 25 | ~ 41.67% |
Black/Caribbean/African | 3 | 5% |
Unspecified | 1 | ~ 1.67% |
Gender identities | ||
Woman | 30 | 50% |
Man | 30 | 50% |
Age | ||
30–39 | 7 | ~ 11.67% |
40–49 | 24 | 40% |
50–59 | 21 | 35% |
60–69 | 5 | ~ 8.33% |
70+ | 2 | ~ 3.33% |
Unspecified | 1 | ~ 1.67% |
Sexual Orientation | ||
Gay | 4 | ~ 6.67% |
Straight | 46 | ~ 77% |
Two-Spirit | 2 | ~ 3.33% |
Bisexual | 3 | 5% |
Other | 2 | ~ 3.33% |
Unspecified | 3 | 5% |
Overview of findings
I mean, you can die from that [HIV]. And if the other person doesn’t know about it, then it’s like a murder charge kind of thing, you know what I mean? (HIV-Negative, Woman, White; 0030)
As interview discussion about HIV risk continued, participants described how they viewed the act of a person living with HIV not disclosing their status as featuring morally questionable behaviour – though the act of not disclosing was invariably underscored by concerns about risk of transmission, regardless of whether or not one is undetectable. For example, when asked if participants felt the legal frameworks should still apply to situations in which individuals had “low to no risk” of transmission, participants’ responses tended to emphasize that concerns about risk always needed to feature within their assessments of the legal frameworks:They didn’t ask you to give them that disease to them. I think they should all be thrown in jail. (HIV-Negative, Woman, Indigenous/First Nations; 0028)
If they’re undetectable and they still have the virus, it can still be a risk factor. Yeah, but still they put the other person at risk without disclosing. They didn’t care whether they got it or not. They’re only thinking about their own sexual needs. (HIV-Negative, Man, Indigenous/First Nations; 0012)
I don’t think there’s very much difference. It’s still … it’s still irresponsible for the person who’s got HIV, you know … I know if I had it, I would be responsible and tell them, you know. Anybody that’s around me, like regardless of … what people think of me, it’s just the responsible thing to do, right? Because … it’s not something that I would want to catch. (HIV-Negative, Man, Indigenous/First Nations; 0023)
Respondent: You should be going down for murder, I feel. You want to fucking fuck with someone’s life, then you’ve just murdered them. [ … .]
Interviewer: And you can’t even get it in cases where – you know how we talked about like undetectable?
Respondent: Yeah.
Interviewer: So even if it’s really low to no risk?
During these discussions, interviewers were frequently struck with how participants – particularly those not living with HIV – tended to express support for HIV non-disclosure legal frameworks based on misguided understandings of HIV ‘risk’ in the context of highly effective and available treatment in British Columbia.Respondent: Well, still, though. You didn’t tell them! They have no right to play God with your life. (HIV-Negative, Woman, Indigenous/First Nations; 0011)
Well, I think it’s imperative that people know [even in cases where transmission is low], because you know, whether you’re going to get lucky that night, it’s their livelihood [health]. So, I mean, you change their lives if you … and you should respect that, because you know what happened to you, yourself, right? (HIV-Positive, Man, White; 0033)
They should get a lot more than that.... you’re giving somebody life, ruin somebody’s life. (HIV-Positive, Woman, White; 0049).
Participants’ perspectives about HIV risk and the legal frameworks tended to largely stem from a ‘pre-Antiretroviral’ era that disavowed the current realities of the intervention ‘landscape’. As such, these perspectives were frequently underpinned by a misguided premise that there is always risk for transmission, including when individuals with HIV have low viral loads (less than 200 copies per milliliter of blood), which is not consistent with current understandings.Well, I think it’s [being charged with aggravated sexual assault for not disclosing when undetectable] a good idea, because you’re basically playing with somebody else’s life. Because it’s a life. You have this disease for life, you know. (HIV-Positive, Woman, Indigenous/First Nations; 0045)
I think with HIV, when you factor in that social stigma, like why should someone have to say like, ‘Oh, I’m HIV-positive,’ on the chance that person’s going to react really negatively or harshly?” (HIV-Negative, Woman, White; 0021)
As such, a subset of participants began to interrogate how one’s ‘decision’ not to disclose their HIV-positive status was deeply linked to features of social context that stigmatize HIV. Within these discussions, interviewers were often struck with how calls for ‘personal responsibility’ and the need to disclose ran counter to participants’ understandings and concerns about the profound stigma that actively limits – or, in many cases, prevents – the ability to disclose. For example, one participant described how, despite emphasizing that feelings of shame and fears of social repercussions represent critical barriers to disclosure, she felt those living with HIV should nevertheless be ‘responsible’ and disclose their status:I don’t think a lot of them do [disclose] because they’re afraid, you know. Like they’re afraid that they might lose their partners or whatnot. (HIV-Positive, Man, Indigenous/First Nations; 0043)
Despite the widespread acknowledgement among participants that stigma limited how disclosure can occur, it became clear that many of the participants felt that negotiations about safer sex were, in ‘practice’, almost entirely the responsibility of individuals living with HIV. Within these discussions, some participants emphasized that concerns about stigmatization needed to be reconciled alongside the values they placed both on the autonomy and privacy of people living with HIV and the value they placed on protecting the health of ‘self’ and ‘others’. Nevertheless, as these discussions unfolded, participants tended not to describe how those living without HIV may also have responsibilities around safer sex practices, instead often returning to the need to compel those living with HIV to disclose their HIV status via mandatory and coercive enforcement mechanisms, i.e., legal frameworks. Here, participants tended to suggest that concerns about autonomy or privacy for people living with HIV – concerns all participants emphasized needed to be taken seriously – should be overruled in order to protect the health and well-being of those not living with HIV. One participant not living with HIV described the complexities involved in navigating between personal autonomy and the health and wellbeing of the broader community:One of the ways that it’s [HIV] contracted a lot, because they’re [people living with HIV] too ashamed of telling anybody that they’re positive and not being responsible enough to say, “Hey, I’m HIV positive. Maybe we should … take some responsible steps”, you know. (HIV-Negative, Woman, White; 005)
Some of the participants living with HIV described how the stigma associated with HIV reinforced how they interacted with sex partners, with many describing how the fear of both being criminally charged and socially and/or romantically rejected shaped situations that made them feel unsafe. One participant living with HIV described how past experiences of rejection from romantic partners resulted in him deciding to disclose his HIV status at the beginning of a romantic relationship in order to prevent future feelings of heartbreak should he become attached and then rejected again:I feel like the ability to choose when [someone is going] to disclose is important, and stigmatized facts about themselves and medical history is very important to protect. But also, that those kinds of considerations of autonomy and privacy stop being personal when they start affecting other people. And it’s just when and where it switches from the one to the other. (HIV-Negative, Woman, White; 0021)
While all of the participants in the study felt HIV stigma represented a key barrier to those who are tasked with disclosing their HIV-positive status, two participants living with HIV argued that HIV stigma ‘no longer mattered’ to them, partially due to the evolving social context surrounding HIV. For example, two participants described:When you like someone that much you’re gonna say “Oh, oh my God, I’ll lose them if I say I’m positive, I’ll probably lose them, right.” But if you tell them in the beginning at least it hurt less cause you’re not attached with the person yet. (HIV-Positive, Man, White; 0048)
I’m pretty confident in who I am, right? So it doesn’t bother me what people think, so I tell people that I have HIV like pretty well right away... And the lifestyle I live, HIV is … it’s so common right? It’s got no stigma attached to it at all, right? You know? (HIV-Positive, Man, White; 0034)
Despite emphasizing that the negative effects of HIV stigma were from a previous era, these participants nevertheless expressed support for the legal frameworks that criminalize HIV non-disclosure. For these participants, a dissonance began to emerge in which the ‘progress’ made with regards to HIV treatment was undermined by the extent to which they continued to view HIV as an ‘exceptional’ infectious disease that, as a result, required a legal framework to ‘govern’ HIV risk and transmission. These discussions were often highly personal and revealed important histories about how those living with HIV connected their previous experiences with HIV and HIV risk to their understandings of the HIV non-disclosure legal frameworks. As such, as the interviews progressed, the stories of those living with HIV continued to emerge and inform their perceptions about the HIV non-disclosure legal framework.Well, you know, before it [HIV stigma] might have been more of a problem, right? But nowadays, I don’t think it is, you know, because the education is more there. People were ashamed back then, even when I first got it. But now it’s, you know, it’s so open, you know. Like the HIV is so open now, you know. It’s not a shameful thing. (HIV-Positive, Woman, Indigenous/First Nations; 0045)
I heard of a couple of other girls down here that were going out and having sex with men, and they knew they had HIV and they intentionally... I think they’re still out there somewhere. And were spreading it, and they should be put down [euthanized] … That’s a serial killer. [Mm-hmm] a serial killer. And yeah, those people should be extinguished. (HIV-Negative, Man, Indigenous/First Nations; 0025)
As such, participants tended to buttress a ‘pro-criminalization’ stance on HIV non-disclosure based on somewhat sensationalized accounts and stories. For example, as participants reflected on the stories they had heard about, some tended to construct narratives that featured people living with HIV as inherently ‘bad’ and ‘to be feared’ because they could easily and without warning choose to purposefully transmit the virus. While this concern tended to be put forth by those living without HIV, several of those living with HIV reflected on how these perceptions of the reprehensible ‘other’ ran up against their own experiences and observations of others living with HIV:You know, there was one guy that went around … . I don’t know if it was in the States or in Canada, but – I think it was in Canada, but he exposed, what, 30 girls, or so? And oh, man, it was crazy. Fuck, he just went out, and he knew he had it. And they were after him, a manhunt on him. And they finally got him. (HIV-Negative, Man, White; 0026)
Many of the participants reflected on how they felt they likely acquired HIV from a partner who did not disclose their positive status, though all of the participants reported that they were unsure and unaware of the specific encounter that may have resulted in their own acquisition of HIV – experiences that occurred up to 20 years previously. A sub-set of the participants living with HIV described how they would have liked their previous sexual partners to have disclosed their HIV-positive status because they could have either declined to have sex or used precautions (e.g., condoms). For example, one participant reflected on how her own experience acquiring HIV features within how she thinks about HIV risk and the application of the legal framework surrounding HIV non-disclosure:I think the law should be you should have to be open no matter what. [ … ] If somebody wants to give you HIV they can give you HIV and you’re not gonna do nothing about it. They want to stab you with a rig full of their blood what can you do? It’s a pretty easy way to transmit it. But, like in social living as opposed to all these other transmittable diseases like other STDs right, it of course is a very low risk with HIV now. But people actually people know that now and they’re being high risk because of that and that worries me too. (HIV-Positive, Man, White; 0056)
As the interviews came to an end, some participants living with HIV pointed out a conundrum or dilemma of sorts, which functions as a catch-22, that they had identified based on their own experiences living with HIV. Specifically, these participants identified how the legal framework in Canada is implicated in increasing HIV stigmatization broadly and, as a result and at the same time, (re) produces a set of social conditions that makes disclosure extremely difficult and unsafe (e.g., due to fears of violence). As such, several participants pointed out how they felt the law itself is inherently paradoxical and counterproductive, particularly within the pursuit of “governing” HIV disclosure. For example, one participant living with HIV described how the criminalization of HIV non-disclosure is, in itself, a stigmatizing act. Here, the participant described how the law seems to be premised on concerns that those living with HIV would purposefully transmit concurrently frames people living with HIV as being inherently ‘bad’ people:Where no transmission takes place, it’s kind of a little harsh. But it depends on the situation. They still … whether transmission took place or not, you still didn’t tell them. You took their choice away … . And that’s not right in my mind. It’s really not right. Like, if I’m ever intimate with anybody, I tell them right away. I’ve got HIV. Now you deal with it. It’s your choice. It’s in your court. Because, like I said, I was perturbed when nobody told me. (HIV-Positive, Woman, undisclosed ethnicity; 0038)
I think [the legal framework] makes people with HIV look really bad. Like, you know, it makes them look like they don’t give a shit about nothing. Like I wouldn’t want to hurt somebody. I don’t know why people would want to hurt somebody. I don’t even know how people do it. I mean, like if I would have known that, that person could have got charged, you know, like that I slept with that time. Like I mean, I probably would have like. I probably would have said, “No, don’t charge him.” I mean, that would be crazy. (HIV-Positive, Man, Indigenous/First Nations; 0044)