Wednesday, December 3, 2014

RE: HIV Non-Disclosure

Dear Peter MacKay, Justice Minister, (TW- grey rape)

HIV non-disclosure should be a unique and explicit criminal offence; I write to you today to ask that you consider proper parliamentary processes to write HIV non-disclosure into the Criminal Code of Canada as a summary offence. While I concede that aggravated sexual assault charges are an inappropriate response to HIV non-disclosure, I believe the act to be a criminal breach of Canada's social contract. My suggestion is not toward the misrepresentation of HIV status or the willful exposure to serious infection risk. These crimes are appropriately prosecuted with existing sexual assault laws.

Medical advances have reduced the biological risk of harm necessary to pursue aggravated sexual assault for protected sex with an HIV patient of undetectable viral load. What can't be measured in a laboratory is the psychological impact on the victims of HIV non-disclosure. HIV non-disclosure is a perversion of informed consent.

I understand HIV non-disclosure as grey rape. Grey rape is sexual assault that happens under conditions of questionable or compromised consent. For example: the misrepresentation of condom use or mutually intoxicated sex. Grey rape can mean consent was given to sexual acts but not the conditions that they transpired within (or given to the conditions, but not the acts). HIV non-disclosure is a substantive omission of information that in many cases would preclude sexual activity.

Consent or the withdrawal of consent does not need to be justified, ever. Consent is the basis of self-determination and liberty. Thresholds of consent are personally constructed by establishing an understanding of risk.

Draconian, our government imposes a narrow scientific definition of HIV risk based on heterosexual data on all citizens. The relationship between HIV non-disclosure and risk is one of flux; therein, the legal contingencies for sexual assault fail to meet to socio-medical complexities of HIV.

HIV is unique as a disease and a cultural phenomenon. The global specter of HIV articulates our reality wherein HIV non-disclosure should be considered a communication crime parallel with hate speech. If a communication can be so heinous it needs to be banned, a heinous non-communication may also be prohibited. HIV non-disclosure is should not be criminalized for its relationship to risk; HIV non-disclosure should be criminalized for its relationship to respect.

Punishment must also fit the crime. Imprisonment is not an appropriate deterrent for HIV non-disclosure; largely, prisons are violent proliferators of disadvantage. The best way to curb non-disclosure is to tap into the power of social surveillance. I suggest the option of a nominal fine or community service and the registration of HIV non-disclosure on criminal records. If HIV is to be stopped, the stigma associated with the disease must be transferred away from the people responsibly living with it unto pernicious acts of its willful non-disclosure.



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