Thank you to the Chair and the members of the justice committee.
I'm currently a doctoral student at Concordia University. Later this year, I'll begin a Social Science and Humanities Research Council Banting postdoctoral fellowship in the department of criminology at the University of Ottawa. I'm also a member of the Canadian Coalition to Reform HIV Criminalization.
For my doctoral research, I was funded by the Canadian Institutes of Health Research and Concordia University to examine the experiences of people living with HIV across Canada who have been charged, prosecuted or threatened criminally in relation to alleged HIV non-disclosure. To my knowledge, this is the first qualitative research study, globally, that is focused specifically on HIV criminalization from the perspectives of the people who have lived it.
Today I'll share findings from that study. I've also provided to the committee clerk statements about the experiences of the harms of criminalization from the people who are currently incarcerated.
In speaking directly with people who have been criminally charged, my research calls into question dominant understandings of the courts and media that people living with HIV are violent perpetrators who are actively trying to transmit to others. Rather, what comes to be institutionally understood as wrongdoing is much less obviously so. Because of criminalization, complex and nuanced situations—including people's silence, fear, actual disclosure or in some cases their inability to address their own HIV status—is forced by the criminal justice system into a dichotomous narrative of victim and perpetrator.
I conducted 28 interviews with 16 people from five different provinces. I spoke with five women and 11 men. One of the women identified as a transwoman. This was a diverse group of people who comprise a wide range of experiences across the spectrum of people who are facing criminal charges in relation to HIV non-disclosure. Many of them are socially marginalized, including black and indigenous people, gay men, people who live in poverty and women with histories of street-based sex work. The youngest person I interviewed was in their mid-teens at the time of charges and the oldest was in their mid-fifties.
The interviews consisted of detailed questions about people's experiences from the time they found out they were criminally charged, to, if relevant, their arrest, court proceedings, sentencing, incarceration, release and their lives outside after their sentence. Three of these people had been threatened with criminal charges by police, while 13 had been formally criminally charged—all with aggravated sexual assault. HIV transmission was alleged to have taken place in only one of these cases.
All of the women I interviewed indicated having long histories of sexual abuse by men and discussed a context where disclosure was highly complex due to their lack of power in the relationships. A woman I spoke with was charged with aggravated sexual assault because she had been gang-raped and did not disclose to her rapists. Another woman who was threatened with criminal charges was raped at knifepoint, yet she was the one threatened with charges of aggravated sexual assault. Both had histories of sex work and authorities did not treat their accounts of their sexual assaults seriously. One of these women told me that if she's guilty of anything, she's guilty of being raped.
The charge of aggravated sexual assault was extremely confusing for people because they understood that the sex they had was consensual—outside of those two instances. A majority of the people in the study were concerned about transmitting HIV to someone else. They understood that they acted in a manner so as to protect their partners from potential transmission, such as noting that they took their medications regularly, rendering them uninfectious, or that they used condoms, or both. One woman I spoke with handed her partner a condom prior to sex, which he did not use. She is now a registered sex offender. In some cases, people had disclosed to their partners who later went to police and lied about the disclosure having taken place.
Due to being charged with a criminal sanction usually reserved for the most violent, non-consensual, actual sexual assaults, combined with being HIV-positive, the people I spoke with were confronted with intensified forms of punishment, violence and discrimination. This included denial of bail and ultimately incarceration for long periods of time on remand prior to trial or before charges were dropped or stayed, extraordinary release conditions as part of bail, or conditional release that included being mandated to present oneself to police 24 hours in advance of proposed sex with their sexual partner and having the partner consent to sex in front of police. The people I interviewed who had these conditions imposed had undetectable viral loads.
Additionally, people I spoke with told me that there was a widespread lack of knowledge of the current science of HIV by police, lawyers and courts. This put people who were criminally charged in the position of having to educate those tasked with criminalizing them about viral load and transmission. People felt that the police's stigma and ignorance was enabled by the legal context of criminalization.
All but two of the 14 people charged indicated that this was their first-ever criminal charge. Despite this, all but one of them were denied bail due to the perceived severity of the case, and were either held in remand or under house arrest for long periods.
Seven people I spoke with were prosecuted, with five of the seven pleading guilty. The reasons they indicated for taking a plea were the following: having been coerced by their lawyer into pleading despite having undetectable viral loads or having used condoms; being fearful of missing their families; or being ashamed of the charge and of having their HIV status exposed to the public. The longest sentence served was close to 15 years. The shortest sentence served was approximately two and a half years.
From the point of arrest through trial, incarceration and release, people I spoke with described a series of events that were marked by HIV-related stigma, panic, discrimination and fear. People described a range of forms of violence at the hands of government employees, namely police officers and prison staff. These included denial of health care and medication access from corrections employees. One person I spoke with almost died because guards would continually rip up his urgent requests to see a doctor in his face.
Other forms of violence included long periods of incarceration and administrative segregation as well as breaches of privacy wherein corrections officers would disclose their HIV status and charges in front of others, knowing that physical violence would or could result.
Additionally, there were assaults by police officers and corrections officers accompanied by stigmatizing comments and discriminatory behaviour. One man told me:
I was getting beaten by all the inmates because their corrections officers had disclosed my charge to people on the range. I was on an isolated range for violent murderers and would still get harassed. You know this rape charge and HIV was worse than being a murderer in their eyes. One officer pushed me to the ground naked holding me with a boot to my chest saying he would never touch a man with AIDS.
Another indigenous woman told me, “They treated me like dirt. They only touched me with gloves and would use really heavy alcohol rub afterwards. They talked down to me like I was a non-person, an AIDS person.”
Given the charge of aggravated sexual assault and the resulting registration as a sex offender, people were not able to get employment in areas where they had past experience and expertise. They were denied jobs when applying. Many were on social assistance, even though they wanted to work.
People were regularly denied housing. One person was told, “We don't rent to rapists.” The person had had their charges dropped by the crown but information about their case was widely available online.
All of the participants noted that they failed or did not meet the criteria of the various psychological tests to determine what kind of sex offender they were. A few noted that the tests themselves had caused ongoing psychological trauma. This was due to being forced to watch videos of child pornography and violent sexual assaults, as well as being coerced into defining their normal adult sexual desires as deviant or wrong, just because they had HIV.
The past charge continued to extend into their daily lives by threatening their economic security. One indigenous woman told me, “I'm not allowed to work in the school I used to. I love working with kids, but now the school won't allow me to.” One man told me “To label someone as a sex offender, that's for life. I have to carry this for the rest of my life. I think that's unfair.”
All of the people I spoke with had a very hard time psychologically coping with being understood as a violent rapist. As a result of their experiences of criminalization, all had either tried to commit suicide or had long periods of suicidal ideation. Today, a majority of the people I spoke with live with post-traumatic stress disorder, which has a wide range of impacts on their daily lives.
Through speaking with criminalized people directly, it becomes apparent that applying the criminal law, specifically the laws of sexual assault, causes greater harm, often exacerbating situations that are already marked by stigma, trauma, shame and discrimination.
Thank you.