For the purposes of relative brevity only, I am limiting the content of this post to HIV/AIDS discrimination in Canada, and will not be addressing the racial component (i.e., which racial groups are at highest risk). It should go without saying that this is already a loaded topic. I’m going to warm this post up by providing you readers with a video link for the trailer of a powerful documentary about the life-long effects of discriminatory North American laws (specifically in the U.S.) on HIV-positive people, before I break down some basic terminology:
HIV Is Not A Crime A 2011 Documentary by Sean Strub
Now, partly for the purposes of reducing the space it takes to say “living with HIV/AIDS”, and partly as a sign of compassion for those individuals who are thusly described (some of whom are my friends), for the rest of this post, I am going to use the word poz instead. I will be using it like any other adjective, just like how I don’t talk about my friends who are poz any differently than anyone else unless the topic at hand is specifically about social barriers against people who are poz. Previously, one might have said “infected”. But is this person a zombie or a rabid animal? I think we can all afford to be a lot more sensitive, and just use the word poz instead.
Furthermore, on the issue of the term “infection” (and sometimes even its cousin, “transmission”) some people are born poz, some people became poz relatively unintentionally (i.e., not engaging in high-risk behaviours, such as bare-backing with someone they knew at the time was poz or sharing needles), and some people who became poz at one time now have such a low viral load that it can’t even be detected (let alone transmitted in any way to another individual). It is for sensitivity to all of these people and, really, most people who are poz (and not currently dying from complications of AIDS), that many prefer to speak of becoming converted. Most people who are poz aren’t walking around with such an active and excessively contagious infectious process coursing through their circulatory system that it is in any way appropriate to refer to them as “infected”. And in fact, even for those who are so unfortunate to be dealing with a hyperbolic bloom of the virus in their system, this is usually a temporary state, often associated with the earliest phases in conversion (which can easily go unnoticed for many newly converted) or the final stages of AIDS (in which case, they are unlikely to just be out for a casual stroll like anyone else).
The point is that words like “infected” and “infection”, when talking about people who are poz, carries a connotation of uncleanliness, filth, and/or viral transmission again, medical intervention has actually advanced to the point that many poz people are no-transmissible or even un-detectable (I’ve seen it with my own eyes while working for a doctor whose only poz patient had been non-transmissible for 13 years and started testing un-detectable). You don’t personally have to agree with this argument, but I do, so I will be referring to people as becoming converted (or at risk thereof) unless I’m quoting a source that uses different language, such as the Supreme Court of Canada.
Finally, a major component of anti-poz stigma is when people look at someone who is poz and perceive of their condition first (as though it were a disease, an infection, or otherwise just icky in socially significant ways) and then perceive of the person in front of them after the fact. Many people will see the fact that This Individual Is Poz as more important (or of a higher priority) than the fact that they are an individual. A human being, not just a body that carries a perceived threat of invisible death and some sort of unseen contagious filth. A person. This attitude of seeing some isolated quality before recognizing the full personhood (or even not being able to see past this isolated undesired quality) of the individual concerned is called essentialism. If you’re already familiar with the role of essentialism in racism, sexism/misogyny, homophobia/transphobia, and ableism, among many other forms of systemic oppression, yes I am talking about the same thing here. Essentialism is the driving principle in anti-poz stigma, but bigotry is the behaviour of application of that principle the line is razor-thin.
Criminalization Of HIV In Canada
Now that I’ve established the terminology you will be seeing in this blog post and likely elsewhere if you choose to look for resources (especially in gay and queer communities, where I’ve personally seen poz and converted/conversion used most often), I can start talking about the criminalization of HIV. I’ve actually known about a law that exists in Canada now for a few years, whereby if a person who is poz engages in unprotected sex without disclosing their status to their partner, they can be tried and convicted of aggravated sexual assault (i.e., rape). I found out about it because, though he had not converted either of two known casual partners with whom he engaged in unprotected sex, a CFL football player named Trevis Smith was being put on trial and his reputation permanently destroyed for not disclosing his status to his partners. To the best of my knowledge, Smith’s wife has never charged him, presumably because she’s not looking at her husband as some sort of infectious pustule. Other people have been convicted on similar charges under similar circumstances prior to and since Smith faced sentencing that marked him a sex offender, but his particular case was what brought this issue to my attention. I’ll be getting to what the law actually states momentarily.
First, for the record, while I personally very strongly disagree with engaging in unprotected sex without first having an honest conversation about STIs and safer sex (no matter what your status), I can fully empathize with someone who can’t quite get the words out until after the first encounter. This is also simply not the same as lying when a partner enquires. I talk about why that is in this blog post I wrote in May 2011 when I found out that a bunch of my friends-at-the-time, who all still claim to be sex-positive, were apparently sex-positive-unless-you’re-HIV-positive. The short version is I have experience not being able to get the words out soon enough, and though that person continued to see me and not use protection for nearly a year, when we broke up, he threw it back in my face I’m talking about human papillomavirus, which I was exposed to before the first time I consented to sex as a young adult (take all the time you need to think about that). But what I didn’t mention in that post is that I also have experience being directly lied to about someone else’s STI status, and being directly lied to about someone going to get tested . While I can be compassionate to someone who couldn’t find a way to bring it up (assuming we are speaking of someone who is poz and either non-transmissible or undetectable, or someone who knows their poz status and uses a condom to protect their partner), I cannot stand by someone who lies about their status when asked about it or who (regardless of their status) deliberately avoids getting tested and/or practising safer sex. Full stop.
I firmly believe that the media circus around Trevis Smith, and the existing law around non-disclosure, bolstered already pre-existing widespread stigma and a dangerous avoidance of personal responsibility (that really need not be further exacerbated) on the part of people who can’t rest assured of their status because they won’t get tested for fear that they will test positive for conversion. People already avoid getting tested so that they can keep a false sense of security. I dated multiple such individuals and have talked to countless people who haven’t the faintest idea of how to actually practice safer sex (it’s more than just a fucking condom) or who assume that if their prospective partner doesn’t say anything, it’s because they have nothing to disclose (these are people who are recklessly negligent towards themselves). Criminalizing HIV isn’t going to make it go away, any more than not getting tested will reduce your chances of conversion. So what does Canadian law actually say about HIV?
In 1998, R. v. Cuerrier set the precedent for HIV criminalization in Canada. The Supreme Court of Canada ruled, at the time, that someone who is poz who is engaging in protected or unprotected sex without disclosing their HIV status to their partner, obtained consent under fraudulent circumstances, and therefore has committed an aggravated sexual assault. The default assumption here is that people who are poz are frightening, are rapists, and unsuitable sexual partners for anyone who isn’t poz. Whether or not the sexual partner(s) pressing the charges was/were converted is irrelevant, as is whether or not the person who is poz even has a sufficiently high viral load that they can convert anyone else; and in fact, as in Trevis Smith’s case, Cuerrier’s two partners were not converted. It’s also unclear whether or not the complainant must demonstrate to the court that they were of HIV-negative status prior to the encounter, although in one case, a failure to demonstrate that resulted in an aquittal. Well, the law changed recently. Very recently. Now you can be charged even if you are undetectable or non-transmissible, if you didn’t use a condom. And you can still be charged even if you did use a condom, no matter what your viral load was at the time. Of course, the media spins it as “now you can be HIV-raped without a condom and you won’t even know it! Clutch your pearls!” Here’s the actual statement in the Supreme Court of Canada’s decision two months ago:
[ “This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations under s. 265(3)(c) Cr. C. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault (s. 273 Cr. C.). To obtain a conviction under ss. 265(3)(c) and 273, the Crown must show, beyond a reasonable doubt, that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose may amount to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm.
The evidence adduced in this case leads to the conclusion that, as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used. This general proposition does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.” ]
In other words, if you would consent to sex with someone assuming that they are HIV-negative but doing nothing to either rule out the possibility that they are poz or even protect your own sexual wellness (as any responsible sexually active adult should), but your attitude towards that person does a 180 in the event it turns out they are poz, the Supreme Court of Canada will answer you by registering your former sex partner as a sex offender and sentencing them to prison, for up to a maximum of a life sentence. And yet the Supreme Court of Canada just can’t see how this could possibly be abused. Well, the BC Civil Liberties Association can. So can Canadian HIV/AIDS Legal Network and their coalition of allied organizations, which released this statement on the same day as the Supreme Court’s decision. Because not every person who is poz who dares to have sex with a consenting adult is actively trying to convert HIV-negative people without their consent (again in that case, I do not stand by his actions and think he should be criminally punished), but the Supreme Court of Canada ruling criminalizes every HIV-positive body in the country; unless, as Michael Vonn says, you freeze and label your used condoms and get signed waivers from all your sex partners indicating that they knew your status before you had sex. Anyone with a bone to pick against a poz sex partner in Canada now has a golden ticket to ruin that person’s life, livelihood, public reputation, and ability to maintain and secure gainful employment, safe housing, or custody of their own children, by dragging them through a guaranteed media circus and criminal court. Race is a significant factor in this, that is already too complex to address even briefly, except to say that the guaranteed majority of people who will be impacted by this are racialized individuals. You can take that to the bank.
Changing The Record
To some people, sex-positivity means sex is a positive thing that you should gleefully embrace at every possible opportunity. If that’s what floats your boat, fine, but sex-negative abstinence “activists” and pro-lifers alike would like nothing more than to paint all sex-positive activists and their ideology thusly. And of course, it is this very slippery misappropriation of the term “sex-positive” that leads the same people who embrace it to recoil in disgust at the audacity of anyone who is poz to have a sex life at all to say things like “Well if I found out I had sex with someone who was HIV-positive and they only told me afterwards, they may as well have held a gun to my head and raped me, because if I knew they were HIV-positive, I never would have given them my consent.” One of my long-term partners actually posted this online in a discussion led explicitly towards this conclusion by a local self-proclaimed sex-positive activist (who, funny thing, has since used that website and Twitter to repeatedly libel me and multiple others but especially me, because I’m too poor to hire a lawyer to stop her). I just about barfed on my keyboard when I read the words my so-called friends, allies, and lovers had contributed to this conversation, and when I managed to contain myself, I seriously contemplated spontaneously ending my romantic relationships over it. Amazingly, these are people who rub shoulders with, fuck, and maintain a leather family with at least one person who is terrified to tell anyone too loudly that they have herpes, for fear of being treated like a Pariah. But none of them see the connection.
Sex-positivity is for everybody. It means an approach to sex education that teaches individual people that they have the right to prevent unwanted pregnancies and unwanted sexually transmitted infections, the right to self-respect, the right to say “no, not right now, but maybe later”, and the right to say what they want without fear of being ridiculed or shamed (and to stand up for themselves if they are ridiculed or shamed). It means being aware, up-to-date, and educated about what safer sex means and your individual and general risks of inheriting or transmitting a sexually transmitted infection with any of your sexual partners. For instance, if you aren’t having penile sex, how do you protect yourself (obviously condoms are out) and what is your risk of inheriting or transmitting something like HIV or chlamydia from the different activities you are engaging in? (Hint: enzymes in human saliva eliminate the HIV virus but not chlamydia; some infectious processes such as heat blisters from herpes or aphthous ulcerations from bad oral hygiene or smoking can compromise either your lips or gingiva, increasing your risk of inheriting even infections that your saliva would normally eliminate.) Sex-positivity means not feeling ashamed to be tested regularly for sexually transmitted infections while you’re sexually active (and for a few months after) and even encouraging your primary sexual partner to go with you so you can get tested together (or even immunized where possible and desired, such as for Hepatitis A & B). It also means all sorts of fun stuff like dropping in together at the sex shop down the street from the clinic and picking out a new toy to play with.
Don’t want to be converted? You don’t have to be an anti-poz bigot to reduce your risk of exposure and promote prevention. Both risk-reduction and prevention are critical aspects of sex-positivity. It’s sad that both “sex-positive” activists and the Supreme Court of Canada have left poz people even further marginalized on this issue than they already were. And if you think it’s pretty bleak in Canada but haven’t watched that 8-minute video, I’ve got news for you: it’s so much worse in the states, I might wind up doing a second blog post just about that.
Assuming that someone has nothing to disclose because they didn’t say anything isn’t informed consent. I realize my opinion is going to be unpopular among people who are not poz, but please (everybody). Take some responsibility for what you’re doing with whatever you’re packing between your legs. It’s one thing if you asked and they lied which I flat-out disagree with and think they should be criminally punished in that case but it’s another thing entirely when you don’t ask (especially when they used a condom anyway) and then get the person registered as a sex offender because YOU failed to take the same degree of personal responsibility as you secretly expected from them (but only if they were poz, because if they weren’t, then you don’t expect them to take that degree of personal responsibility because you don’t)
THAT’S where the discrimination is taking place here. One standard of behaviour for people who are poz, and another for people who aren’t. Criminal punishment for people who are poz (even with low viral load, non-transmissible status, or undetectable status), but never for people who aren’t. Are people who are poz not entitled to be assured that the person they are about to have sex with is a safe partner, because they’re already poz?
I find this “informed consent” requirement from people who are poz, but not from people who aren’t (because I guess
because they have nothing to disclose, and they’re the “victim” here?) motivated by thinking of HIV/AIDS as how the SCC laid it out: threat of bodily harm. Only it’s not that black-and-white. Low viral load, non-transmissible viral load, and even undetectable viral load, do not present threat of bodily harm.
Have you ever had unprotected sex with someone who was not, at the time, a virgin? Congratulations. You’re INFECTEEED with HPV, and your body can now INFECT your future partners with a virus that could kill them with cervical cancer over roughly the same time span in the absence of treatment as untreated HIV typically becomes AIDS and takes a life.
Shouldn’t you be telling all your partners about your status? After all, you’re potentially killing someone by having sex with them.
HPV is even transmitted via skin-to-skin contact, so either one of you wearing a condom doesn’t protect you. And if you think oral sex is your way out, think again. That’s how people get throat cancer from HPV.