| R v. HIV

Why those with HIV/AIDS shouldn’t be behind bars

In 2009, Nick Rhoades, an HIV-positive young man from Iowa was sentenced to 25 years in prison for failing to disclose his sexual status to his partner after a one-time sexual encounter. This sentence was equivalent to that of a Class B felony. Rhoades had worn a condom, and the virus was not transmitted. Nevertheless, in addition to the prison sentence, he was required to register as a lifetime sex offender. Due to a strong public response, his original sentence was greatly reduced, and he was released several months after the initial ruling, however, because of his sex offender status he is now unable to be around children, has difficulties finding a job, and is required to wear a monitoring bracelet.

In Texas, a man is currently serving 35 years in prison for spitting on a policeman. His HIV-positive status allowed his saliva to be categorized as a “deadly weapon” – even though it is impossible for HIV to be spread through saliva.

The Supreme Court of Canada ruled in 1998 that not disclosing an HIV-positive status can be seen as fraud, thus invalidating any consent given by the partner. According to the Canadian HIV/AIDS Legal Network, people living with HIV in Canada can be prosecuted and charged for not disclosing their status before engaging in what is considered “an activity of significant risk” for viral transmission. However, the definition of an “activity of significant risk” is still unclear. While the punishments for HIV/AIDS non-disclosure are often more severe in the United States, Canada is known to be one of the most stalwart in criminalizing people who are HIV-positive. Criminal prosecutions here have ranged from charges of assault and criminal negligence, to a charge of first-degree murder.

As HIV/AIDS became more prevalent in Canada, the legal system struggled to keep up with the complicated implications of the disease. In 1998, an appeal was brought to the supreme court over the case of R v. Cuerrier, whereby a BC Court of Appeals judge ruled that sexual activity which puts a partner at risk of HIV could not be considered assault. The Supreme Court ruled, however, that by having unprotected intercourse while HIV positive, a person can be considered guilty of assault. To establish guilt, Justice Peter Cory stipulated three conditions: that the accused’s acts endanger[ed] the life of the complainant, that he intentionally applied force without the consent of the complainant, and that the complainant would not have engaged in intercourse had they known the person was infected.

The changing legal attitudes towards HIV/AIDS and assault force us to wonder whether or not non-disclosure should be punished so severely, if at all. If one agrees with this criminalization, do they also agree that other common sexually transmitted diseases and infections, such as hepatitis or syphilis, should be prosecuted to the same extent as the widely publicized AIDS cases?

One of the main arguments in support of this criminalization has been that it could help deter “risky” behaviour and transmission of the virus. Yet there has been almost no evidence found to support this stance – in fact, it seems that this could only be counterintuitive to public health goals. Researchers from the Canadian HIV/AIDs Legal Network and UNAIDS have stated that these laws could deter HIV testing – and thus diagnoses – due to the fact that these laws are supposed to be used in situations where a person is knowingly HIV-positive. The lack of knowledge can thus protect a person from being convicted as a criminal. If someone who has taken the initiative to get tested and, potentially, treated, is then prosecuted for a crime, it seems that they are being punished for doing what public health officials tend to encourage. In addition, it’s been found that approximately half of new transmissions occur during periods of early infection, when people are not likely to even be aware of their own status. As an alternative to the criminalization of HIV/AIDS, UNAIDS has advocated positive prevention programs to reduce transmission and to empower people living with HIV.

Criminal ramifications of a person’s choice to not disclose their status imply that the person who is HIV-positive has the sole  responsibility toward ensuring the health of their sexual partner. The onus on ensuring sexual practices are safe should rest on all individuals involved. Suggesting otherwise undermines the idea that safe sex should be practiced by all, and not just by at-risk groups. Furthermore, if safe techniques are being used, then there should be no “significant” risk for transmission.

Criminalizing HIV transmission also increases the fear and stigma associated with the virus. The media coverage of these cases has already shown how persons who are HIV positive are sensationalized and become the “other” – headlines such as “HIV Monster” from UK paper The Sun, or “Evil Beast” in Scotland’s The Daily Record are prevalent. Sean Strub, a filmmaker whose documentary “HIV is Not a Crime” discusses these issues, refers to the creation of a “viral underclass,” in which people with HIV are then seen as a threat to public health and society in general.

Of course, intent and motivation should play a role in any potential legal rulings. If a person was malicious in their intent to knowingly spread the virus, then there is  justification for legal prosecution. However, it is important to note that these cases are rare. While most people may believe that there is an ethical requirement for an individual to disclose their status, the increased role played by the judicial system in determining the culpability of an HIV-positive person is troubling. The tendency to marginalize those who suffer from AIDS is all too common, and this recent criminalization must stop in order to be able to address and prevent further HIV transmission.


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