This paper provides an overview of the use of the criminal law to regulate sexual behaviour in three areas of critical importance: (1) HIV exposure in otherwise consensual sex, (2) sex work and (3) sexual activity largely affecting sexual minorities. It analyses criminal law pertaining to these three distinct areas together, allowing for a more comprehensive and cohesive understanding of criminalisation and its effects. The paper highlights current evidence of how criminalisation undermines HIV prevention and treatment. It focuses on three specific negative effects of criminalisation: (1) enhancing stigma and discrimination, (2) undermining public health intervention through legal marginalisation and (3) placing people in state custody. The paper also highlights gaps in evidence and the need for strong institutional leadership from UN agencies in ending the criminalisation of consensual sexual activity. This paper serves two goals: (1) highlighting the current state of research and emphasising where key institutions have or have not provided appropriate leadership on these issues and (2) establishing a forward-looking agenda that includes a concerted response to the inappropriate use of the criminal law with respect to sexuality as part of the global response to HIV.
The Women, ART and the Criminalization of HIV Study is a qualitative, arts-based research study focusing on the impact of the HIV non-disclosure law on women living with HIV in Canada. The federal law requires people living with HIV to disclose their HIVpositive status to sexual partners before engaging in sexual activities that pose what the Supreme Court of Canada called a 'realistic possibility of transmission'. Drawing on findings from seven education and discussion sessions with 48 women living with HIV regarding HIV non-disclosure laws in Canada, this paper highlights the ways in which women living with HIV respond to learning about the criminalisation of HIV non-disclosure. The most common emergent themes included: the way the law reproduces social and legal injustices; gendered experiences of intimate injustice; and the relationship between disclosure and violence against women living with HIV. These discussions illuminate the troubling consequences inherent in a law that is antithetical to the science of HIV transmission risk, and that fails to acknowledge the multiple barriers to HIV disclosure that women living with HIV experience. Women's experiences also highlight the various ways the law contributes to their experiences of sexism, racism and other forms of marginalisation in society.
This article notes that the Supreme Court's punitive approach in Mabior and DC is out of step with recent scientific and medical advancements with respect to HIV transmission and treatment. It argues that while the Court set out a risk-based test to determine when HIV disclosure is legally required, it did not appropriately weigh the evidence regarding the risk of HIV transmission. It predicts that the judgment will have an unfair and disproportionate impact on already marginalized people, including newcomers, those in violent relationships, and those without access to treatment. Finally, it questions whether the new legal test for HIV non-disclosure cases reflects Charter values.
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