Talking Consent With HIV
Documentary Explores HIV Non-Disclosure
You’re out on a date with someone you seem to really like. You went out to a restaurant together. It’s 9 p.m., it feels like the night is still young, and you decide not to go home right away.
By 10 p.m., you find yourself taking off your shoes at your date’s house, and follow them towards their bedroom. You don’t think much of it at first, but then you start kissing.
Within a few minutes, you’re half undressed and your blood starts to rise. One move by them, the next by you and, although nothing has been said, you have just consented to having sex.
But here’s what the other person didn’t know—you have HIV. You weren’t in the right situation to say anything. Things happened too fast. Now, you’re a criminal.
On Feb. 18, Concordia is hosting a lecture on the criminalization of HIV, the impact of non-disclosure laws on people living with the disease and the activist response.
The lecture is hosted by Cécile Kazatchkine, who works on issues at the intersection of human rights and HIV at the Canadian HIV/AIDS Legal Network.
It will be accompanied by a screening of a recent documentary by the organization entitled, Consent: HIV Non-Disclosure and Sexual Assault Law.
The film features feminist scholars, activists, and people living with the virus. It brings communities together to discuss the prosecution of HIV non-disclosure as sexual assault and the necessity of challenging the current problematic legal framing.
“Consent is a hot topic right now in the news,” said the film’s director Alison Duke. Sexual consent and other forms of sexual violence have been in the spotlight lately, with the Jian Ghomeshi trial, as well as the allegations involving Bill Cosby.
The film questions how the law developed, transitioning from protecting women from sexual abuse, to criminalizing women with HIV.
“When you look at what women activists were trying to do in the ‘60s and ‘70s, I don’t think they would have thought that the things they were fighting for would actually be used to criminalize women,” Duke said.
“Women disclosing their HIV status is not as [simple] as telling your partner,” she continued. “Women are usually in a more vulnerable situation when it comes to consent.”
A woman disclosing that she is HIV-positive might not be in a safe environment, if she hasn’t told her partner prior to the moments before intercourse. Danger comes with how the other person might react when they find out. Duke said that sometimes ex-partners or partners can become quite furious, and consequently, a woman’s HIV status is used to threaten her.
A person in Canada living with HIV can be prosecuted for aggravated sexual assault if they do not reveal their HIV-positive status before having sex in certain circumstances.
This form of sexual assault is considered the most serious of sexual offences.
Under the current Canadian law, HIV non-disclosure—in some circumstances—nullifies consent. This turns otherwise consensual sexual activity into sexual assault.
Put this into perspective and imagine the short story at the start of this article. Both parties consented to sex.
“The government puts so much effort and energy in criminalizing people, and they don’t really offer that many solutions to educate people or implement settings so that people can consent properly without fear, stigma, and discrimination” – Alison Duke
In section 273 of Canada’s criminal code, it states that a person who commits an aggravated sexual assault is someone who wounds, maims, disfigures or endangers the life of the complainant.
So if someone with HIV/AIDS has sex with someone, they are guilty of endangering the life of the other person they are having sex with.
Part two of section 273 of the criminal code states that someone who commits a crime of aggravated sexual assault is guilty of an indictable offence and may be imprisoned.
According to the film, Canada is one of the world’s leaders in per capita prosecutions for HIV non-disclosure, following the U.S.
Consent: HIV Non-Disclosure and Sexual Assault Law was originally made for anyone studying law or women studies, but when it was released, it generated debates outside of those groups, according to Duke.
“The government puts so much effort and energy in criminalizing people, and they don’t really offer that many solutions to educate people or implement settings so that people can consent properly without fear, stigma, and discrimination,” Duke said.
“If you want to criminalize its fine, but where’s the other side of it?” Duke continued. The solution would be to allow the opportunity for a person living with HIV to disclose freely without repercussions.
“Activists, such as feminists, sit on both sides of the fence. So it’s a real wholesome discussion of why we need non-disclosure laws, [or] why we don’t need it,” Duke said.
Should HIV non-disclosure remain a crime? According to the film, when disclosure is criminally culpable and when people are prosecuted for the offense, legal responses need to change.
“Ideas around what the law should be at every moment in history changes, and you really have to think ahead when you’re fighting for things,” Duke said. “We have to discuss what is going to be the next step if the law is going to change, because you can’t just say ‘were going to decriminalize.’ We have to know where we’re going.”
“Le VIH: un virus ou un crime?” // Feb. 18 // J.A. De Seve Cinema, J.W. McConnell Library Building (1400 De Maisonneuve W.) // 9 p.m. // Free
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