The SCC in D.C. and Mabior Part II: Divisive Reactions and Significant Social Implications

This is the second part of a two-part post regarding R v DC and R v Mabior. Part I looked at the incremental change in the law that these cases represent and the questions that were left unanswered by the SCC. Part I can be found here. 

On October 5, 2012, the Supreme Court of Canada (“SCC”) released its highly anticipated decisions in R v DC, [2012] 2 SCR 626 [DC] and R v Mabior, [2012] 2 SCR 584 [Mabior].

For many, the SCC’s decision represents a reasonable middle ground and balances the interests of people living with HIV while still appreciating the role of informed consent in sexual relationships. However, the reaction to the decision by the media and HIV advocacy groups has been strong and divisive.

A coalition of HIV advocacy groups who were interveners in the case, including the Canadian HIV/AIDS Legal Network, the HIV/AIDS Legal Clinic Ontario (“HALCO”), and the Canadian AIDS Society, released a statement the day the decision was released stating that they were “shocked and dismayed” at the ruling. These interveners had hoped that the SCC would move away from criminalization, or in the alternative, that condom use alone (without the accompanying low viral load) would be enough to protect people living with HIV from criminal persecution.

The other side of the argument, expressed strongly in a Globe and Mail editorial titled “The Supreme Court weakens the protection of the right to say no” and repeated in many  comments sections, is that of outrage over the perception that people living with HIV can now avoid disclosing their HIV status to sexual partners without repercussions. The Globe and Mail wrote that “[f]or young people in particular, the world is now a scarier place. Until now, they had the right to consent knowingly if they had sexual intercourse with a partner with HIV. But the Supreme Court of Canada has taken that protection away, in cases where the infected person is receiving treatment and uses a condom.”

This argument ignores the fact that Mabior merely clarifies the Cuerrier “significant risk” standard. It does not take away protections that previously existed or negate the role of consent. As Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network, wrote in an editorial for the Toronto Star,

media reports of the decisions exhibited amnesia toward the state of the law on this issue, implying that people living with HIV could previously be found guilty for not always disclosing their HIV status to sexual partners, in every circumstance. Some coverage implied that these new decisions represented ‘get out of jail free’ cards for people behaving irresponsibly, as if Canadians would no longer be able to protect themselves against infection.

Further, this argument ignores the role of the criminal law. Of course people would want to know if their sexual partner has HIV, and from a purely visceral perspective it is easy to argue for full disclosure at all times. However, this gut reaction ignores the social realities people living with HIV face. The stigma surrounding HIV is prevalent and largely affects racialized populations (for example, Aboriginal peoples in Western Canada and Afro-Caribbean Canadians in Ontario) who already face significant social barriers. As researchers Carol Galletly and Steven Pinkerton argue in an article entitled “Conflicting Messages: How Criminal HIV Disclosure Laws Undermine Public Health Efforts to Control the Spread of HIV”:

In contrast to public health efforts to reduce HIV-related stigma, HIV disclosure laws…highlight the distinction between persons with HIV and un-infected persons (whose consensual sexual activities are not subject to criminal scrutiny). In so doing, the criminal law reinforces the ‘us versus them’ dichotomy that is central to prevailing theories of stigma. The association of HIV infection with criminality also emphasizes that the trait is undesirable and dangerous – that it diminishes not simply the health-status but also the social standing and moral character of persons who are infected.

This ascription of an “us” and “them” allows a portrayal in HIV non-disclosure cases of the accused as an evil predator that has chosen to intentionally spread a deadly disease.

The media portrayal of those accused in HIV non-disclosure cases has reinforced this stigma that portrays HIV positive individuals as sexually deviant and morally bankrupt. As noted judge and activist (who is himself HIV positive) Edwin Cameron points out, “the police release the names and photographs of people suspected of having unprotected sex without disclosing their HIV status. They hold press conferences and issue ‘public safety alerts,’ calling for anyone who has had sexual contact with such persons to contact the police.”

The media reports have largely featured men from racial minorities, whose sexual practices are outlined for the public to scrutinize. In the case of Johnson Aziga, a Ugandan immigrant charged with first-degree murder for failure to disclose, the media ran stories commenting on the accused’s sexual practices with headlines such as “HIV killer has high libido and could reoffend.”

The interveners described the decisions in Mabior and DC as being a “cold endorsement of AIDS-phobia,” which will “add even more fuel to stigma, misinformation and fear.” Articles such as the Globe and Mail editorial give support to this statement and highlight the significant social implications of the decision, many of which the SCC seems to have ignored.