Media reporting: HIV and the Criminal Law

This guide is an evidence-based resource to assist journalists in Canada in reporting responsibly and accurately about alleged HIV non-disclosure and resulting criminal cases.

The Criminalization of HIV Non-Disclosure – Experiences of people living with HIV In Canada

Canada is known globally as a leader for criminal and public health sanctions targeting people living
with HIV. Canada applies general criminal laws to cases of alleged HIV non-disclosure, most often
people face charges of aggravated sexual assault. Since 1989, over 200 cases have been identified.
Much research has been done on the issue, but this is the first known qualitative research study in
Canada examining the phenomena of criminal and public health charges for HIV non-disclosure
from the perspectives of those who have lived it.
The project examined the experiences of people living with HIV who were charged, prosecuted, or
threatened with criminal and public health charges in Canada because they had been alleged to not
tell sex partners of their HIV-positive status. The project was conducted between January 2016 to
January 2019.

Through our eyes

Photo essay drawing on photographs and narratives created as part of an ongoing community-based photo-voice project visually exploring the gendered dimensions of HIV stigma, disclosure, and criminalization among diverse groups of women and transgender people living with HIV in Vancouver, Canada

HIV disclosure without consent linked to increased risk of verbal and physical violence against women living with HIV in Metro Vancouver, British Columbia

Examines the prevalence and correlates of violence against women living with HIV due to HIV status in Metro Vancouver and examines the particular impact of non-voluntary HIV disclosure. Found that WLWH who had their HIV status disclosed without consent had 5-fold increased risk of experiencing HIV-related violence. Suggests that the criminalisation of HIV non-disclosure may contribute to and reproduce gender-based violence, and raises concern about stigma, discrimination, and women’s confidentiality rights.

Director of Public Prosecutions Act – Directive

Directive to federal prosecutors regarding HIV non-disclosure cases issued by the Attorney General of Canada on December 8, 2018. Reflect the most recent scientific evidence around sexual transmission of HIV, as analysed by Canada Public Health Agency, as well as applicable criminal law as specified by Canada Supreme Court.

Women and HIV criminalization

This policy brief represents the view, as women living with HIV, of the current state of criminalization of HIV among women in Canada and the United States after reviewing academic and grey literature, statutes and policies and an unpublished survey of membership. ICW-NA members highlighted their concern about stigma and discrimination in the justice system related to HIV non-disclosure.

Positive sexuality: HIV disclosure, gender, violence and the law—A qualitative study

Drawing on a feminist analytical framework and concepts of structural violence, this analysis sought to characterize the negotiation of sexual relationships and HIV disclosure among Women Living with HIV (WLWH) in a criminalized setting. Researchers conducted 64 qualitative interviews with cis and trans WLWH in Vancouver, Canada between 2015 and 2017. Despite frequently being represented as a law that ‘protects’ women, the study findings indicate that the criminalization of HIV non-disclosure constitutes a form of gendered structural violence that exacerbates risk for interpersonal violence among WLWH. In line with recommendations by, the WHO and UNAIDS these findings demonstrate the negative impacts of regulating HIV prevention through the use of criminal law for WLWH.

HIV Criminalization in Canada: Testimonials

Compiled from research interviews conducted by Alexander McClelland, as part of his doctoral research at Concordia University. In order to protect the confidentiality of research participants, these stories are composites and the names are pseudonyms.