HIV Disclosure Laws within a Criminalized Sex Industry: A Failure of Prevention Strategies and Policy to Protect the Basic Human Rights of Sex Workers XVII International AIDS Conference, Mexico City, August 2008 M Montaner, K Pacey, L Pelletier, MW Tyndall, K Shannon 1. PIVOT Legal Society; 2. British Columbia Centre for Excellence in HIV/AIDS; Faculty of Medicine, University of British Columbia

Canadian Sex Work Legislation Sex work itself has always been legal in Canada Criminal code provisions: s210 & 211 ‘keeping a common bawdy house’ s212 ‘procuring’ s213 ‘communicating for the purposes of prostitution’

HIV Disclosure Laws Cuerrier decision (1998) by the Supreme Court of Canada: “People living with HIV have a legal duty to disclose their HIV status before engaging in behaviours that put another person at significant risk of serious bodily harm” “Significant risk” includes vaginal/ anal sex without a condom (all else, unclear) Not disclosing an HIV+ status may constitute “fraud” which renders a partner’s consent to sex legally invalid In this case, the sexual act constitutes an “assault” under Canadian criminal law

Key inconsistencies in HIV disclosure laws and public health practice Law does not specify what else constitutes “significant risk” vs. “negligible risk” Law remains unclear on condom use as prevention Law remains unclear on whether disclosure is required by law where an HIV+ person is under duress (eg. violence) Williams decision (2003) – suggested “people who think they are HIV positive have a legal duty to report” Places responsibility for disclosure solely on HIV+ individuals (contradicts safer sex and drug use messaging)

Objectives 1) To explore sex workers’ awareness and understanding of HIV disclosure laws 2) To examine the impact of the criminalization of HIV disclosure as a prevention strategy on sex workers’ health and safety (under the current sex work legislation in Canada)

Moral vs. Legal Obligation to Disclose “ I’m not so worried about being charged but about giving it to someone. I would feel really guilty” (HIV+ woman) “Yeah, you place yourself at risk. I mean, to disclose that you have it… I think it is more a moral issue than a legal issue. If you have morals you are gonna tell people, you know, it is all about honor to me.” (HIV- woman) Interviewer: Do you ever feel legally obligated to disclose someone else’s HIV+ status to another person? “No, I don’t feel legally obligated, I feel morally obligated in certain situations” (HIV- woman)

Theoretical” Benefit to the Law “ Theoretical” Benefit to the Law Focus Group Discussion with HIV- women Interviewer: Are there benefits to this law? “Well I think the benefit of the law is that we’re protected.” “What? So that we can go and charge a john? Like who’s gonna believe us when we go to court?” “You go out there and get beat up and how many of those johns go to court and actually get charged? …And once you’re out there and the girls know you’re turning johns in?”

Barriers to HIV Disclosure or Safe Negotiation of “Negligible” HIV Risk 1. Gendered process of negotiating ‘male condom’ use “I don’t think she should have to tell if she is HIV positive and the client is insisting on going without a condom but if he ends up catching the HIV virus I don’t think she should be charged…” (HIV+ woman) 2. Pervasive Violence “ I think just going out there [working] takes a big risk whether you use a condom or not, I mean, gambling every, every time you go out.” (HIV- woman) “And I told him [disclosed HIV+ status] and he said “..You were saying that so I don’t rape you,” …And the I said “Please use a condom” and he did. It was still a bad date because I got raped…But I felt like I was saving this rapist’s life! I felt like I should have just let him, but I couldn’t kill anyone.” (HIV+ woman)

Barriers to HIV Disclosure or Safe Negotiation of “Negligible” HIV Risk 3. Criminalization and lack of safe working conditions “Every time you step in the car you’re vulnerable [to violence]. Every time.” (HIV+ woman) “You know, it’s the way the police fucking treat you when you’re a hooker! Like look at that lady who gets jumped at the SkyTrain [public transit] and there’s like 50,000 more cops all over the place, all kinds of new security. Women down here [Downtown Eastside] get raped on a daily fucking basis, beat up on a daily basis, they couldn’t be bothered… You know? What makes them so much better than us? We’re not human because we’re here?” (HIV- woman)

Barriers to HIV Disclosure or Safe Negotiation of “Negligible” HIV Risk 4. Economic Survival & Supporting a Drug Habit “You’re working and you don’t have HIV. And a date goes, I don’t want to use a condom. I’ll pay you more money. The girl’s at risk.….And often they’ll [johns] ask the ones [women] that are vulnerable. The ones that are on coke. And that are obviously discombobulated, you know they can’t control their bodies. Or you know, they’re just scared…‘Cause they’re ruining somebody’s life just to have sex without a condom. Just for one time.” (HIV- woman)

Prevention and Policy Implications Socio-legal reforms to sex work are imperative to HIV prevention Criminal disclosure laws ineffective as a prevention strategy May create additional barriers to HIV testing or accessing HAART Legal education needed on rights and obligations for disclosure Education/ sensitivity training for police, criminal justice system

Acknowledgements All the women who provided their time and expertise Maka Project peer research team: Shari, Debbie, Adrian, Laurie, Shaun, Chanel, Rose, Laura, Sandy Rest of the Investigator Team: Kate Gibson, Thomas Kerr, Evan Wood, Anita Palepu, Natasha Press, Colette Schooner, Judy McGuire, Cindy Patton Canadian Institutes of Health Research (CIHR), Michael Smith Foundation for Health Research (MSFHR), IAS 2008 Scholarship