The United States leads the world in prosecuting people for HIV transmission and exposure. Canada comes in second. All but two of Mexico’s 30 states criminalize HIV-status nondisclosure. North America leads the way … in a global war on women.
Globally, women bear the brunt of the HIV pandemic. In the United States, that’s particularly true for women of color. In the US, HIV-positive women of color face extraordinarily high rates of morbidity and mortality. They also report high rates of intimate partner violence. This doubles the risk of death for HIV-positive women. The house is a war zone, and then the State jumps in and intensifies it … through laws that universally and without distinction criminalize `everyone’ for nondisclosure of their status.
Women in abusive, toxic relationships are supposed to `share’ with their partners? It’s that simple? Cicely Bolden shared with her partner. He killed her. He justified his murder by claiming the disclosure drove him mad.
In October, the Supreme Court of Canada handed down two decisions concerning so-called criminal transmission. The Court claimed its decisions were meant to clarify some vagueness in a 1998 decision, R. v. Cuerrier. In that decision, the Court said people living with HIV and AIDS had to disclose their status before engaging in sex. To not do so constituted `fraud’. The two recent cases, R. v. Mabior and R. v. D.C., dismally clarified the Court’s understanding of what’s at stake here: risk.
Here’s the story of the D.C. case:
A woman living with HIV, D.C., had a partner for four years. The partner claims the first time they had sex together, she had not disclosed her status to him. When she did reveal her status, he said it was fine. They stayed together for four years. At some point, he became abusive and violent. Finally, he was convicted for beating D.C. and her son. That’s when he accused her of not disclosing her HIV+ status. Although she claimed that they used a condom the first time they had sex, the trial judge did not believe her and found that their first sexual encounter was unprotected. D.C. was convicted of sexual assault and aggravated assault for not disclosing her HIV status to her partner. The partner is HIV negative, by the way. On appeal, the Quebec Court of Appeal overturned D.C.’s convictions on the basis that, even if no condom had been used for that first sexual encounter, her viral load was undetectable at the time. Based on her viral load, there was no “significant risk” of transmission. Non-disclosure, thus, was not a crime. That’s the case Supreme Court of Canada heard.
The Court decided against D.C. and, in so doing, declared that the risk of AIDS is so great that those living with AIDS must disclose, use condoms, and have low viral loads if they are to avoid criminal prosecution.
According to the Canadian HIV/AIDS Legal Network, with this decision “the Supreme Court of Canada made the law even harsher for PHAs: people must now disclose their status before having sexual relations that pose a `realistic possibility’ of HIV transmission. But in the Court’s view, a `realistic possibility’ encompasses almost any risk, no matter how small.”
For the Court, the risk of disclosure, especially for women, means less than nothing. In its decision, the Court further codified the absolute lack of value of a woman’s life. It ignored study after study and legal argument after legal argument, some local and others international, which demonstrate that criminalization of HIV-positive status does not impede the spread of AIDS. The Court ignored as well innumerable studies and legal arguments that clarify the impossible position HIV-positive women in dependent as well as abusive relationships face when forced to disclose.
None of that mattered. All that mattered was `risk aversion.’
You know what has actually spread over the last decade? Criminalization of HIV disclosure. And you know who has pushed that spread? The United States Agency for International Development, USAID, which first funded and then `encouraged’ nations to adopt a so-called Model HIV/AIDS Law. Over 60 countries now criminalize HIV transmission or exposure. These laws do not protect women. These laws attack women and do them harm. It’s an active front in a global war on women, lead by the United States and Canada.
Dan Moshenberg, firstname.lastname@example.org