Feminists have fought long and hard for a clear criminal definition of consent in the context of sexual assault. We wanted an unequivocal understanding, in law, that unless someone explicitly agrees to specific sexual activity, there is no consent, making the sexual contact a sexual assault.
As so often in our work to have the law understand and address violence against women properly, an unanticipated negative consequence of the important advances made to the law of consent has emerged: women being charged with sexual assault, often aggravated sexual assault, for failing to disclose their HIV status to a sexual partner.
Certainly, all of us would wish for a transparent and open relationship with our sexual partners. That would, in many circumstances, include information about any sexually transmitted infections to which we could be exposed as a result of sexual contact.
But is a serious criminal charge the right response when someone fails to provide this disclosure? Many women’s anti-violence and health organizations as well as HIV/AIDS groups and health care practitioners, answer that question with a resounding no.
In 2012, two landmark Supreme Court of Canada decisions, R v Mabior and R. v D.C., established that non-disclosure of HIV status, when there was a “realistic possibility of HIV transmission,” is a criminal offence. The legal basis for this was that, in the opinion of the Court, no valid consent had been given by the partner. In other words, the partner had not explicitly consented to have sex with someone living with HIV.
Most commonly, people who do not disclose are charged with aggravated sexual assault; a charge that is usually reserved for the most violent of sexual assaults. People have been found guilty of aggravated sexual assault for not disclosing their HIV status, even when no transmission of the virus occurred.
Close to 200 people in Canada have been charged for not disclosing their HIV status; 20 of them women.
Marjorie Schenkels is one of those women. Schenkels, an Indigenous woman from Manitoba, had unprotected sex with a friend three times without disclosing her HIV status. She was charged and convicted of aggravated sexual assault and sentenced to two years less a day in jail with probation to follow. She, like many others in her situation, was also placed on the sex offender registry.
Her appeal was recently turned down by the Manitoba Court of Appeal, and she has now appealed to the Supreme Court of Canada.
At trial, evidence was led about her history of sexual violence and her belief that she, herself, had contracted HIV through coerced sex. The trial judge said that Schenkels’ behaviour was not predatory
“or part of a pattern of dangerous behaviour. Rather, her silence was the result of fear.”
According to research by the International Community of Women Living with HIV North America, Schenkels’ situation is similar to many of the women in North America who are charged with sexual assault for not disclosing their HIV status to a partner. Almost all are marginalized; Indigenous and racialized women are charged at a disproportionate rate, and most are in relationships where they are too fearful to disclose their HIV status because their sexual partner is abusive.
It’s a public health issue
As health practitioners have noted, HIV is a health condition, a public health issue and should not be dealt with by the criminal law. In fact, the criminalization approach makes prevention and treatment more difficult: it increases stigma and may even discourage women from getting tested or seeking medical care out of fear there may be criminal consequences if they do.
“Moreover, the criminalization of HIV non-disclosure does nothing to advance sexual autonomy or protect women from gender-based violence. Many women are unable to make autonomous decisions about when to have sex, with whom, what type, and whether to use condoms. . . HIV disclosure is not always a simple, one-step process . . . many women in longer-term heterosexual relationships may face gender-specific challenges related to HIV disclosure; eg., a partner’s expectations that safer sex practices will cease once a relationship becomes serious.””
Minister of Justice Jody Wilson-Raybould took the occasion of World AIDS Day on December 1, 2016, to say the federal government will review the current criminal response to non-disclosure of HIV status and to acknowledge that over-criminalization may have negative consequences, but so far there has been no moratorium on laying charges in new cases.
Perhaps the government could be guided in its thinking on this public health matter by the Consensus Statement issued by a group of prominent Canadian HIV physicians and medical researchers, which states, in part:
“[w]e have a professional and ethical responsibility to inform policy formulation and the criminal justice system in matters related to the health and well-being of our patients and Canadian society. We developed the present statement out of a concern that the criminal law is being used in an overly broad fashion against people living with HIV in Canada. . . We are concerned that actors in the criminal justice system have not always correctly interpreted the medical and scientific evidence . . . and may not have understood that HIV infection is a chronic manageable condition. This may lead to miscarriages of justice.”