The Canadian justice system has recently taken a controversial stand in an as-yet unclear area of criminal law that asks whether HIV-positive people are legally required to disclose their status before having unprotected sex. According to the law, a person with HIV may be guilty of a crime for not telling his or her status to a partner before sexual activities. According to statistics from the Ontario AIDS Network, 55,000 Canadians are HIV-positive. That’s equal to the population of Milton, Ontario: not exactly a small number of people.
Hart House’s Debating Club took on the issue on Feb. 25 by debating whether or not having sex without disclosing one’s HIV-positive status should be a crime in Canada. Erin Fitzgerald and Ian Freeman spoke against the criminalization of non-disclosure, and Michael Kotrly and Andi Wilson argued for it.
The “no” side contended that consensual sex is a right that should be extended to everyone regardless of their HIV status, and that protecting themselves during sex is each individual’s own responsibility. “When you consent to sex without protection, you consent to all the risks that go with it,” said Freeman. His opponents insisted that consensual sex without full knowledge of a partner’s HIV status is not consensual sex at all. “How is it real consent,” they asked, “when one person knows the greater risk over the other?”
People advocating for the criminalization of non-disclosure believe that full and absolute consent requires complete knowledge of a partner’s HIV status. To them, non-disclosure means that consensual sex was actually based on false pretenses, a view that can lead to an HIV-positive person being charged with sexual assault for knowingly endangering the life of their partner. There have been multiple, high-profile cases where people have said that had they known their sexual partner had HIV, they would not consented to sex.
On the other hand, these laws could become counter-productive. Opponents of mandatory disclosure have said that it could discourage people from using condoms. They have also argued that people may be reluctant to take an HIV test, fearing that knowledge of their own status could make them a criminal in the bedroom.
The question of stigma also comes up. Some say the implementation of such laws will only make life worse for HIV-positive people, extending the state’s control over their sex lives.
Kyle Vose, an HIV-positive person who said he believes that criminalization will only create more problems, half-seriously asked the crowd if he’ll be asked to show a sex license next.
Vose’s cynicism about systemic prejudice against people with HIV was based on personal experience. “I was told by a judge in a court case that ‘one with your status is not one to be believed,’” he said.
One opinion, aired after the debate ended, was that HIV-positive people are not responsible for educating the public about their disease. That duty, proponents said, belongs to the state and health system.
“This law, and the fear it is based on, is wrapped up in fear of homophobia, HIV, and people who are simply different.”