People living with HIV in Canada can be charged with aggravated sexual
assault and be registered as sexual offenders if they do not disclose their HIV
status, but many HIV-positive women have little knowledge of this law,
according to a recent qualitative study. The law contributes to increased HIV-related
stigma, social injustices and vulnerability to violence for women living with HIV,
argue Dr Saara Greene and colleagues.

Forty eight women
took part in seven arts-based workshops which each took place over a four-day
period. Each workshop included an education session regarding the legal
implications of non-disclosure, followed by a focus group discussion that
allowed women to share thoughts, feelings and concerns regarding the law.

Canada is one of many countries
that continues to criminalise non-disclosure of HIV positive status in sexual
acts between consenting individuals. Transmission of the virus does not need to
occur: a person can be prosecuted for exposure to the virus in the absence of
transmission.

In 2012, the Supreme Court
of Canada clarified its position on HIV transmission, ruling that people living
with HIV are legally required to disclose their status to sexual partners
before engaging in sexual activities that pose a ‘realistic possibility of
transmission’. According to the Court, two combined factors could be used as a
defense against this realistic possibility of transmission: a low plasma viral
load (under 1500 copies/ml) and the
use of a condom.

Thus, the law does not acknowledge biomedical advances that conclusively
show transmission is impossible if the infected individual is virally
suppressed (see our
factsheet on undetectable viral load and transmission
). The ruling leaves
room for those engaging in condomless sex with an undetectable viral load to be
prosecuted. In Canada, a charge of aggravated sexual assault could carry a
maximum sentence of life imprisonment and registration on the sex offender
registry.

A more recent 2018 federal directive issued by the attorney general
states that a person living with HIV who has maintained a suppressed
viral load (under 200 copies/ml of blood) should not be prosecuted, because
there is no realistic possibility of transmission. However, this directive only applies in Canada’s three territories and not in the provinces where the vast majority of the population live. Advocates are calling on the provinces to issue similar directives.

The workshops were
carried out in 2016 and 2017, in three Canadaian provinces (Ontario, Saskatchewan and British
Columbia). The median age of participants was 47 (range: 30-59); the majority
of women were Indigenous (60%), with only a small percentage of white women
(8%). It was important for minority women to be oversampled as HIV prevalence is
nearly three times higher in Indigenous peoples across Canada, with high rates
of HIV diagnoses occurring in young Indigenous women. Additionally, 42% of
women charged with HIV non-disclosure are Indigenous.

Most women were
heterosexual (73%), cisgender (94%) and born in Canada (79%). One-third of
women were single, with 29% reporting a common-law relationship.

Analysis of the focus
group discussions revealed the following themes: