Transmission of AIDS | Between stigma and consent

Julie* had met Marc* in her mid-twenties. Their love affair had led to the purchase of a house in a remote suburb of the South Shore. Their two stable jobs allowed them to start a family. Julie discussed it with her doctor and stopped the birth control pill. Then his world came crashing down.

Mathieu Perreault
The Press

“My son-in-law came to see me one evening in the fall of 2021,” says Solange*, Julie’s mother. He told me that he had taken an AIDS test by donating blood and that he was HIV positive. He claimed to have been infected from a cut and wanted me to help him convince my daughter to keep their baby plan, because the risks of transmission were almost nil if he was treated. »

Marc ended up confessing to his mother-in-law that he regularly had unprotected sex with strangers he met in downtown Montreal. He used blood donations to check if he had been infected with HIV. Julie immediately left him and experienced the pangs of a three-month wait to have several tests ruled out any infection with HIV, the hepatitis C virus or another sexually transmitted infection (STI).

Solange contacted The Press after reading news reports about a consultation announced by the Federal Department of Justice regarding the decriminalization of HIV non-disclosure in cases where the risk of HIV transmission is very low.

Stigma

This decriminalization aims to encourage at-risk populations to get tested, with some avoiding doing so to be able to plead ignorance. But at a time when discussions on sexual consent are more and more advanced, can we still have risky behavior when we are in a monogamous relationship?

“We are talking about willful blindness, conduct incompatible with the original monogamous and exclusive relationship agreement,” explains Charles Côté, criminal lawyer at Desjardins Côté.

Among the recent decisions referred to by M^e On the side, we find that on the withdrawal of the condom from last summer and that of 2011 on a penetration while a woman was unconscious, during a sadomasochistic relationship. “At a time not so long ago, it was criminal to give an STI,” recalls M^e Side.

In 2018, a Toronto study published in the journal PLOS One reported that 7% of clients of a medical clinic specializing in HIV were less likely to be tested because of the risk of prosecution.

The consultations which will be launched in October, on the other hand, focus on cases where a person knows that he is HIV positive. “At the moment, according to the Supreme Court, you have to wear a condom and have an undetectable viral load so as not to be obliged to declare HIV status,” explains Léa Pelletier-Marcotte, lawyer for the NGO Coq-Sida.

“Currently, in the state of science, having an undetectable charge should suffice. It heightens the stigma of HIV and it may discourage some people from getting tested because then they may plead ignorance. There are people who avoid screening to have a fulfilling sex life without the risk of prosecution. But it is not our position that non-disclosure should never be criminalized. »

Supreme Court

These limits on the duty to disclose stem from two 2012 cases, Mabior and DC. In the first case, a man had sex with six women without disclosing his HIV status to them. None of them was infected with HIV, but he was convicted and since deported to Sudan. In the second case, a victim of domestic violence was accused by her partner of not having revealed her HIV status to her before their first sexual relationship. She was acquitted on appeal on technical grounds and the charges against the spouse were dropped. These two causes modified the Cuerrier judgment of 1989, which had made it possible to prosecute in the event of non-disclosure of seropositivity.

Most provinces do not apply these criteria to the letter and rely more on science, an approach endorsed by the 2012 decisions, according to Ms.^e Pelletier-Marcotte. “But it creates a legal quilt. Quebec is stricter than others, requiring not only a negative viral load and regular tests, but also proof that the anti-HIV triple therapy is being followed.

About a quarter of prosecutions for this cause have taken place since 2012, according to a report by the HIV Legal Network.

“Canada was until recently in the top 5 of the countries that prosecute the most for this reason, ”says M^e Pelletier-Marcotte.

The start and terms of the consultations are not known. “The precise date of the start of the consultations will be announced on the day of the start of the consultations,” said Geneviève Groulx, public relations officer at Justice Canada.

What does M think^me Pelletier-Marcotte of Julie’s case?

Last August, Solange asked the police in her municipality if Julie could file a complaint against Marc. She got a positive response. But Julie does not want to go down this path, preferring to focus her energies on rebuilding her life. “Thirty years ago, I had a very nice colleague, who had been married for 25 years, who one day came into the office saying that he was HIV-positive and that in fact he was homosexual,” says Solange. Everyone wanted to console him. I was the only one to ask him how his wife was doing. No one had wondered if she too was HIV-positive. My colleague was in a gay couple for a long time afterwards and that’s what I advised my ex-son-in-law. »

* Fictitious first names. Julie did not want to testify openly, having told her story to very few relatives, but her mother’s testimony was confirmed by her father.