On May 7th, LEAF filed written submissions, and Karen Segal, staff counsel with the Women’s Legal Education and Action Fund (LEAF), appeared before the Standing Committee on Justice and Human Rights Review on the Criminalization of Non-Disclosure of HIV Status.
LEAF has proposed a feminist approach to law reform that protects the equality rights of women and girls. We argue the best way to achieve this is to stop treating HIV non-disclosure as a sexual offense.
Canadian law currently criminalizes HIV non-disclosure where a person who is HIV-positive exposes their sexual partner to a significant risk of serious bodily harm—in other words, there is a realistic possibility of HIV transmission. The law has been criticized for its punitive response to those living with HIV.
LEAF shares these concerns, and also brings an equality rights analysis to the law of HIV non-disclosure. Women are often complainants in non-disclosure cases—nearly 20% of women with HIV report having acquired the virus through sexually coercive experiences. And HIV non-disclosure prosecutions have led to an increase in women, particularly marginalized women, being convicted of aggravated sexual assault. Almost 80% of women living with HIV are Indigenous or racialized, and they already face serious over-criminalization.
Further, because HIV non-disclosure is prosecuted as a sexual offence, advocates have sought to limit the scope of behaviour prohibited under sexual assault law, due to the concern that expansion of the kind of behaviour considered to be a sexual offence would further criminalize people with HIV. Unfortunately, these changes apply to all sexual assaults trials, not just those involving HIV non-disclosure. Success in advocacy to limit the application of sexual assault law therefore risks decreasing protections provided for women against sexual violence.
LEAF therefore proposes that HIV non-disclosure be removed from sexual assault law. Where non-disclosure results in actual transmission of the virus, prosecution may be appropriate under non-sexual Criminal Code offences. This would reduce the punitive over-criminalization of people living with HIV, while also protecting women who contract HIV from partners who take no care to prevent transmission. Further, it would protect the equality-enhancing purpose of sexual assault law by affirming a concept of consent that is rooted in sexual autonomy—who touches one’s body and how.
“Sexual assault affects 1 in 3 Canadian women, and less than 1% of sexual assaults lead to a conviction. Further limiting the protection of the criminal law of sexual assault will hurt women”, says Karen Segal, LEAF counsel, “on the other hand, further criminalization of people with HIV will also hurt equality rights in Canada. The proper response is to remove HIV non-disclosure from sexual assault law.”
Even if transmission takes place, LEAF argues that prosecutorial guidelines should ensure that HIV-positive individuals who are victims of violence, coercion, or sexual assault are not prosecuted for their failure to disclose their status when their silence protects them from further abuse and threats.
- Read LEAF’s submission here
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.
For inquiries, please contact:
Karen Segal, Staff Counsel