Tag Archives: Criminalization

The End of Criminalization is Just Good Science

By Marlo Cottrell

As someone who has been living with HIV for over 20 years, I still remember my early years of having to live with this virus. When treatment was often limited and a large number of people were still dying. Trying to navigate through the overwhelming realization that I had to live with this disease, I will tell you that disclosure took practice and I didn’t always get it right as much as I tried. That is a reality for many. Through the decades, we’ve come so far and conquered the enormous summit to accessible treatment here in Canada, easier to manage medication and a life where living with this disease is not a death sentence, but a life with tangible hopes and dreams that flourish.

HIV criminalization has yet to reflect the highly treatable infection we see today; where an undetectable viral15138470_842377852570876_2454002420699421243_o load means the virus stops with us. The legal implications of living with this virus and not disclosing to a partner still garner someone the possibility of convictions of aggravated sexual assault, however. The harshest of sentences relegated to the worst of sexual assaults. Aggravated Sexual Assault: The Criminal Code also allows for increased penalties for sexual assault where the accused “wounds, maims, disfigures or endangers the life of the complainant.” Transmission does not necessarily have to take place. This carries the hefty sentence of the maximum of 10 years in prison and mandatory registration on the sex offender registry list. As a survivor of sexual assault, I find it the implications of this deeply disturbing, when we as human beings when engaged in consensual sex, have the option to protect ourselves. 1 in 5 people living with HIV do not know their status. As a former sex trade worker who advocated for safe sex on a daily basis, I used to tell my clients, “I don’t know where you’ve been and you don’t know where I’ve been. Out of respect for that fact, we need to protect ourselves and each other.” Today, as it stands, if we are undetectable and use a condom, we do not have to disclose. If we don’t use a condom, we must disclose but the risk is zero with an undetectable viral load. I think the crux of criminalization comes down to, who benefits from these laws? We know these laws are not a deterrent for the spread of HIV, which is what the intent was supposed to be. They only perpetuate and reinforce a false sense of security. The goal is to prevent new infections from occurring. I have sat with a former partner in the waiting room with his requisition form for an HIV test, both of us knowing that he should be tested. That crumpled requisition form landed in the bottom of a garbage can faster than you could imagine.

It is the promotion of zero stigma, zero discrimination and zero new infections that is at the heart of what gets people out and embracing an HIV test. The science has been in for a while now. It protects people from new infections when those of us living with this virus are able to know our status by wiping away the fear of shame and the heavy burden of stigma. HIV criminalization was set forth on a misguided course to protect us, but it does little more than further stigmatize a disease that we are conquering. The end of criminalization is just good science.

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My HIV status: I was a weapon

By Kenneth Pinkela

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“He’s HIV positive so it must be him…”

This is a direct quote from CPT Jordan Stapley, US Army JAG attorney and the prosecutor who brought charges against me on my 45th birthday – June 29, 2012.

Up to that point, I was a very happy and successful 27+ year career US Army officer, HIV+, healthy, long term non-progressor, actively serving my country.

On a day I should have been celebrating my 45th birthday, COL Michael Hargis, the military judge, presiding over my general courts martial said the words “guilty of all charges and specifications…” Life as I knew it was over…

It didn’t matter that I had volunteered for a polygraph, that there was no investigation or that my family was in the house.

It didn’t matter that I had volunteered for phylogenetic testing and actually introduced the government to Dr Mike Metzker of Baylor University…the scientist who successfully applied phylogenetics to the HIV virus and was able to demonstrate one strain of the virus was not like the other; thus proving a person is or is not the source of infection.

It doesn’t even matter that the primary witness has signed a sworn statement recanting and describing lies and coercion on the part of the Army prosecution.

I was charged under the Uniform Code of Military Justice (UCMJ), which defines Aggravated Assault as…

any service member offering or attempting to do bodily harm to another individual, through unlawful violence or force, whether or not the offer or attempt is consummated…

My charge sheet reads “Aggravated Assault for “exposing” a First Lieutenant to the Human Immunodeficiency Virus and inflicting grievous bodily harm or death…” and the aggravation is my HIV status…ME…I was a weapon.

When you hear those words “aggravated assault” you, like any average person, you envision some type of violent physical attack …but none of that could be farther from the truth.

My case, like many other HIV Criminalization cases both in the US and in Canada rarely, if ever, have any “element” of a crime.

What’s extraordinary to my case different than the state specific HIV criminal laws, no US President or session of the US Congress has never included HIV in any manner into the Uniform Code of Military Justice.  HIV criminalization continues, without authorization, unchecked via case law, ignorance and stigma.  All at the expense of the lives of military members who just happen to be living with HIV.

I am now 49 years old, unemployed, on public assistance, a convicted felon, my career pension and benefits are gone, including medical care for both combat related injuries and my HIV, but I’m not dead yet.

The network of HIV Criminalization advocates in the US and Canada is amazing! I’m not going to stop until what happened to me can NEVER happen again!

HIV is NOT a CRIME!

HIV is NOT a Violent ACT!

HIV is a virus…a virus that over 1.3 million in the United States and Canada are living with…STOP criminalizing us!

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Criminalization of HIV Non-Disclosure in Canada

By: The Canadian HIV/AIDS Legal Network 

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In Canada, people living with HIV can be charged and prosecuted for not disclosing their HIV-positive status to a sexual partner in some circumstances. What does disclosure to a sexual partner look like? The act of disclosing one’s HIV status means telling someone you are having sex with that you are HIV-positive. This can include anyone with whom you have a sexual relationship, including your spouse, a regular sexual partner, or someone you might have sex with only once.

In 2012, the Supreme Court of Canada ruled that a person living with HIV has a legal duty to disclose their HIV-positive status before having sex that poses a “realistic possibility of transmission.” The Court determined that using a condom and having a low or undetectable viral load (the amount of HIV in a person’s blood) negated “a realistic possibility of transmission of HIV.” More than 180 people have been charged to date with HIV non-disclosure.

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, one of the most serious offences in the Criminal Code. People living with HIV have been charged even if they had no intention to transmit HIV, engaged in behaviours that posed little or even no risk of transmission, and did not in fact transmit HIV to their sexual partners.

The current, overly-broad use of the criminal law increases stigma and discrimination against people living with HIV, spreads misinformation about HIV, undermines public health initiatives and ultimately leads to human rights violations. When people living with HIV still experience overt discrimination and physical violence, disclosure is not easy, especially for those on whom criminalization has a disproportionate impact: women, Indigenous people, migrants and members of the African, Caribbean and Black communities. Furthermore, by equating HIV non-disclosure with aggravated sexual assault, Canadian law harms both people living with HIV and survivors of sexual violence.

But we’ve seen some positive developments in recent years.

In 2014, more than 75 prominent Canadian medical experts signed an important consensus statement, which has been an important tool for advocates and has since been used by defense lawyers representing people living with HIV, judges and scientific experts testifying in court with some positive impacts already emerging.

On World AIDS Day (December 1, 2016), federal Minister of Justice Jody Wilson-Raybould made a historic statement acknowledging the problem of the over-criminalization of HIV non-disclosure and the need for the criminal justice system to adapt to better reflect the current scientific evidence on HIV transmission. Federal Minister of Health Dr. Jane Philpott, echoing this sentiment, has noted that HIV criminalization in Canada is both a problem and a priority for the government to address.

More recently, the Ontario Working Group on Criminal Law and HIV Exposure has called for an immediate moratorium on all prosecutions in cases of HIV non-disclosure while exploring law reform options and working with the province to establish much-needed prosecutorial guidelines to limit the current misuse and overextension of the criminal law. Since Canada’s Minister of Justice, and Attorney General of Canada, has denounced the overly broad use of the criminal law in Canada, why does Ontario continue to unjustly prosecute people living with HIV? Tell Ontario’s Attorney General, the Honourable Yasir Naqvi, to stop unjust HIV-related prosecutions: click here to send your message.

Here’s hoping that both federal and provincial attorneys general listen and take action.

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