Ontario a 'world leader' in unjustly prosecuting people living with HIV, advocates say

September 11, 2017
Article Source
Toronto Star

From a Toronto Star article: It was around Christmas in 2008 when Chad Clarke said he got a phone call from a former partner screaming at him that he had given her HIV.

The next three years would see Clarke arrested for aggravated sexual assault, denied bail twice, pleading guilty to avoid a longer sentence, sent to prison where he was placed in protective custody, and put on the national sex offender registry for life.

The charge related to a failure to disclose his HIV status, although Clarke said that at the time he did not believe he was HIV-positive. Although he had tested positive in 2004, he said he had believed a second test showed he was negative. He said he's been on medication, with an undetectable viral load, since 2008.

"HIV is not a crime," Clarke, 45, told the Star in a recent interview. "It's a public health issue. Isn't health supposed to be key?"

People living with HIV in Canada risk an aggravated sexual assault charge and prison time if they don't disclose their status to their sexual partner, unless a condom is used and the individual has a low viral load, which refers to the amount of the HIV virus in their blood.

Advocates have long complained of HIV-positive individuals being unjustly prosecuted by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission.

It's an issue that is now on the agenda of federal Justice Minister Jody Wilson-Raybould, who has referred to an "over-criminalization of HIV non-disclosure" and is looking at introducing changes this year. But critics say the Ontario government has so far failed to match the federal government's efforts in what remains a complex and sensitive area of the law.

"There are some serious injustices taking place right now," said Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario. "People living with HIV are being criminalized for engaging in behaviours that should not be criminal, and to make it worse, people living with HIV are being charged, prosecuted and convicted of aggravated sexual assault."

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