Last year, the Law Foundation of British Columbia established a $100,000 fund to support legal research in British Columbia that advances the knowledge of law, social policy, and the administration of justice. This year’s recipients of the fund include three of our faculty members: Isabel Grant, Erez Aloni and Regine Trembley. Professor Isabel Grant’s research project “Access to Justice for Persons with HIV: The Over-Criminalization of HIV Non-Disclosure” is tackling some of the ongoing legal challenges associated with HIV.
Of all Western democracies, Canada has taken the most punitive approach to persons with HIV who do not disclose their HIV status to their sexual partners. HIV non-disclosure is prosecuted as aggravated sexual assault, our most serious sexual offence, and is subject to a maximum life imprisonment and registration as a sex offender. Choosing to prosecute these cases as a form of sexual assault has also had implications for the law of sexual assault outside of the HIV context and for our understanding of fraud, sexual history evidence, and the scope of consent.
This project examines the almost 30 year history of HIV nondisclosure prosecutions in Canada and argues that these prosecutions result in the over-criminalization of people with HIV and the distortion of the law of sexual assault generally. Our understanding of HIV has shifted considerably over the past two decades and yet our legal regime has not responded to medical developments that allow an individual who is HIV-positive, with treatment, to reduce the risk of transmission through sex to almost zero.
Why is this important?
The ongoing threat of HIV nondisclosure prosecutions isolates people with HIV from social relationships and perpetuates their marginalization in our society. The legal requirement to disclose one’s HIV status must take into account the context in which disclosure happens and the potential dangers that can ensue from disclosure. A new legal regime is necessary to ensure that only the most egregious cases of nondisclosure, where the HIV virus is actually transmitted, should face prosecution.
At the same time, labelling HIV nondisclosure as a form of sexual assault has damaged the law of sexual assault and, specifically, the law regarding the nature and scope of consent. Feminists have fought long and hard for improvements to the law of sexual assault, a crime overwhelmingly committed by men against women. Blurring HIV nondisclosure with sexual assault has threatened some of these gains.
The goal of this project is to propose a new legal regime for HIV nondisclosure that will replace the existing sexual assault model and focus more on the harm caused by HIV nondisclosure. The project also seeks to develop new prosecutorial guidelines, such as have been developed in other jurisdictions, to ensure that those who take reasonable steps to protect their sexual partner are not subject to criminal liability.
PROFESSOR ISABEL GRANT
Professor Isabel Grant joined the Allard School of Law in 1987. She is one of Canada’s leading law scholars, and her main research interests lie in the areas of Criminal Law and Mental Health Law. She is particularly interested in the law and policy issues surrounding homicide, HIV non-disclosure and gender and criminal law. Professor Grant has made significant contributions to the areas ranging from sexual assault, to homicide, to the legal approach to nondisclosure of HIV infection.