This article was published on July 8th, 2015

The United States and Canada have the first and second highest number of arrests and prosecutions for HIV non-disclosure. That is when an HIV positive person who knows their status has sexual relations with an HIV negative person and doesn’t disclose their positive status beforehand. Whereas some countries now have laws that only criminalize cases of intentional transmission, Canada states that it is a crime not to disclose your status before engaging in a sexual act that poses a “realistic possibility” of HIV transmission. While in Canada what that means for oral or anal sex is undefined, for vaginal sex it means you must disclose unless you have an undetectable viral load AND use a condom. It is a crime if you don’t disclose and: 1) have a detectable viral load and use a condom; or, 2) if you are undetectable and don’t use a condom. And here are ten reasons why this law is draconian, contrary to the public interest, and just plain wrong.

1. Blackmail. There have now been cases where sexual partners are blackmailing HIV positive individuals. If the positive person doesn’t give into whatever demands those are (e.g. money, staying in an abusive relationship, etc.), the blackmailer will go to the police and tell them that the positive partner didn’t disclose their status, even if they had disclosed. Unfortunately, due to stigma and homophobia, particularly if you have elected judges or discriminatory juries, there’s a strong possibility that they’ll believe that nobody would ever knowingly sleep with a positive person.

2. Harm. Not everybody is in a safe situation to disclose. It could be a sex trade worker worried about their pimp. Someone frightened of their abusive partner. Or someone in a small isolated community where discrimination is rampant. It’s not always safe to disclose and could open that person up to violence or even death. And yet we criminalize the person who is afraid for their life.

3. Perpetuity. If someone doesn’t disclose with someone the first time they have sexual relations, they may not disclose in future encounters with that person or with a different person in that social network. After all, they’d be admitting to having committed a criminal offence the first time. Ironically, the law in this situation is actually increasing the risk of transmission by promoting no future disclosure if the person is afraid that charges will be brought against them.

4. Outing. Once a positive person discloses to one person, they automatically lose control of disclosure. They are putting trust in that person not to disclose their status to others. This can be particularly scary in smaller communities, including the gay community. If a positive person meets someone they like, and discloses prior to sex, the negative person might not only reject them, they may then tell other people. Which leads to the next issue….

5. Stigma and discrimination. There’s still a lot of discrimination against positive people. A lot. If knowledge of their status gets out, they can lose friends, family, their job or home (you have to prove that’s why you were fired for it to be a human rights violation).

6. Further marginalization. Many sex trade workers and/or drug addicts are positive due to the inherent risks in their lives. Many of them are already pushed to the margins of society with little support and lead chaotic, difficult lives. How does criminalizing non-disclosure even work as a deterrent to them and does society really need to destroy their lives even further?

7. Alcohol and drugs. Alcohol and drugs can be inextricably tied to the sex lives of some people. A positive person may have the full intention of always disclosing. But if they get drunk or high and forget to tell, the law doesn’t take away their responsibility to disclose. Positive people are just like anyone else – they can get drunk and make a mistake, is it really fair that they can go to prison for that? Who hasn’t gotten really drunk and accidentally had sex with someone?

8. Science. The legal situation in Canada and the United States is based on outdated science. It’s not treated positive people spreading the virus – it’s people who think they’re negative or those who can’t get access to medication. It is nearly impossible for someone with an undetectable viral load to transmit the virus to someone else. Only in the case of HIV does the law make it a crime to do something where a negative consequence is almost impossible to occur.

9. Death. Or lack thereof. HIV is still treated like it is a death sentence by the courts. The laws are so strict because they still treat transmission as if it will kill someone. HIV doesn’t kill, not if it’s treated. If anything, we should be charging parents with assault for giving their children too much sugar because diabetes is a far worse condition to get.

10. Testing. Non-disclosure laws actually lead to a greater number of infections. Since it’s not the treated positive people transmitting the virus, it’s the people who want to think they’re negative. If testing positive means discrimination, stigma, and criminalization of future sexual behaviour, why wouldn’t some people just choose to be ignorant of their status. If they don’t get tested, they don’t get treated, and they continue to pass the virus to others. Non-disclosure laws help fuel the epidemic while doing nothing to stop it.

Let’s stand up for our positive brothers and sisters. Let’s put an end to these outdated laws that victimize, stigmatize, and add fuel to the epidemic.