Community Consensus Statement: Ending Unjust HIV Criminalization

Community Consensus Statement

Download the Community Consensus Statement (including the full list of endorsers)

The Community Consensus Statement outlines a shared critique of why Canada’s approach to HIV criminalization is wrong and calls for some specific actions that federal, provincial and territorial governments should take to end unjust criminal prosecutions against people living with HIV. It was developed by the CCHRC to be a common set of demands by those organizations who sign on to it. The Coalition is looking for widespread endorsement of the Statement by HIV organizations and other organizations concerned about unjust HIV criminalization across Canada. The Statement reflects a consensus. The more endorsements the statement receives, the stronger our collective advocacy will be in getting governments to take the steps outlined in the Statement.

Déclaration de consensus communautaire
www.criminalisationvih.ca/la-declaration-de-consensus-communautaire


End Unjust HIV Criminalization
Community Consensus Statement
November 2017

Download the Community Consensus Statement (including the full list of endorsers)

Canada’s approach to HIV criminalization is unscientific, unjust and undermines public health.

People living with HIV in Canada continue to be singled out for criminal prosecutions, convictions and imprisonment for allegedly not disclosing their HIV status to sexual partners. People have been charged and convicted even when there has been little to no possibility of HIV transmission. Canada has the third-largest absolute number of recorded prosecutions for alleged HIV nondisclosure in the world, and one of the highest rates of prosecution in the world.

Police and prosecutors rely most frequently on the charge of aggravated sexual assault, one of the most serious offences in the Criminal Code. Conviction carries a maximum penalty of life imprisonment and mandatory designation as a sex offender. Canada’s approach has come under repeated criticism domestically and internationally, including from United Nations expert agencies, human rights bodies, judges, women’s rights advocates and scientists.

The criminal law must be used only as a measure of last resort and must be limited in its scope and application.

In the very rare case in which someone intentionally transmits HIV, criminal charges may be appropriate. However, in the vast majority of cases, other interventions, including under existing public health law, may offer a better alternative, meaning there is no need to resort to the criminal law. Unlike criminal charges, these other interventions can and should be tailored to individual circumstances, should involve community organizations with expertise in HIV issues, and should be supportive rather than punitive. To be consistent with human rights, any such intervention must be based on the best available evidence, be proportionate to an objectively reasonable assessment of risk, and be no more intrusive or restrictive than necessary.

In accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.

In keeping with basic principles of criminal law, any prosecution should require all of the following:

  • proof that the person intended to transmit HIV;
  • proof that the person engaged in sexual activity that was likely to transmit the virus;
  • proof that HIV was actually transmitted; and
  • in the case of a conviction, a penalty that is proportionate to the actual harm caused.

Criminal charges should never be used in certain circumstances.

HIV-related criminal charges are not appropriate where a person living with HIV:

  • did not understand how the virus is transmitted;
  • disclosed their status to their sexual partner or reasonably believed their sexual partner was aware of their status through some other means;
  • did not disclose their status because they feared violence or other serious negative consequences would result from such disclosure;
  • was forced or coerced into sex; or
  • engaged in activities that, according to the best available scientific evidence, posed no significant risk of transmission, including:
    • oral sex;
    • anal or vaginal sex with a condom;
    • anal or vaginal sex without a condom while having a low viral load; and
    • spitting and biting.

About the Canadian Coalition to Reform HIV Criminalization
www.hivcriminalization.ca

The Canadian Coalition to Reform HIV Criminalization (CCRHC) is a national coalition of people living with HIV, community organizations, lawyers, researchers and others formed in October 2016 to progressively reform discriminatory and unjust criminal and public health laws and practices that criminalize and regulate people living with HIV in relation to HIV exposure, transmission and non-disclosure in Canada. The Coalition includes individuals with lived experience of HIV criminalization, advocates and organizations from across the country. It includes a steering committee on which a majority of members are people living with HIV.

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