HIV non-disclosure vis-à-vis COVID-19 non-disclosure within the Canadian context (2021)
This last timeline entry regards the ways in which Canada may want to use HIV non-disclosure legal penalties for COVID non-disclosure
cases. In other words, the Canadian law may want to use HIV non-disclosure
penalties for COVID-19 non-disclosure prosecutions. Eliott et al. highlight
that HIV non-disclosure in Canadian law relies on sexual assault jurisdiction.
It is important to recapitulation
how HIV/AIDS and COVID-19 are transmitted. For HIV/AIDS, the latter is transmissible
by blood, fluids (i.e. pre-seminal,
rectal, vaginal), semen, and breast milk (Gerster). For COVID-19, the latter is
transmitted through the respiratory system with coughs, sneeze, sings, shouts,
talks into one’s respiratory system (nose, mouth, airway, lungs) (Levesque). It
can also be transmitted by physical touch and/or on physical surfaces
(Levesque).
It is important to recapitulate that the legal solution for HIV non-disclosure, within the Canadian context, is to reduce “significant risk” with the use of condoms and to obtain a low viral load with medications. In other words, the solution to HIV/AIDS for Canada is to promote sex education (Gerster). For COVID-19, the solution is to promote handwashing and physical distancing (Gerster).
First, many academic and
professional experts have found that, similarly to HIV non-disclosure cases,
COVID-19 cases are primarily target marginalized individuals, such as people
of colour (POC) and Indigenous women. Gerster highlights “All the worst harms
that come with the abuse of power always disproportionately impact racialized minorities,
disabled people and homeless people.” Elliott
et al. express the sentiment of confusion with the government letting its
marginalized communities with little or no public assistance. Specifically,
social support services are limited with COVID-19, and so individuals who are
positive might not have access to health care and face more stigma. They may
face stigma even to the extent of remaining in unfavorable conditions, such as being
“confined at home with abusers” (Elliott et al.). So, the question remains: Is
the Canadian government actually protecting its people or promoting a greater
exposure to social stigma and viral propagation?
In the case of HIV non-disclosure
and COVID-19 non-disclosure, individuals in marginalized communities are less
likely to be treated and more likely to face greater exposure to social stigma
as well as legal ones based on the presented sources.
Second, public health experts,
health researchers, criminologists, and lawyers have raised concerns about legal
enforcement with COVID-19. Although HIV-positive individuals may face more
stigma than COVID-19 individuals, Gerster stresses that surveillance strategies
are being as enforced with COVID-19 as they were at the time when HIV/AIDS was
being propagated “from Africa, to Haiti, to the Caribbean, to New York, and then
to San Francisco.” (Levesque, 2021). For legal professionals and academic
research, the overextended responses only aggravate the current pandemic. For
instance, an accused individual of COVID-19 non-disclosure, as with that of
HIV/AIDS, can be charged with lifetime imprisonment. The use of sexual assault
law recognized the latter as “one of the most serious offenses in the Criminal
Code” (Elliott et al.).
That is
not to say that HIV/AIDS and COVID-19 prosecution ought to be prosecuted in the
same line of jurisdiction. However, the Canadian Court believes that HIV/AIDS
non-disclosure prosecutions could be used as a handy model for that of
COVID-19. In other parties, some disagree with the latter because it tends to over-target
marginalized communities and overextend power to the police institution. Other
parties believe that the solutions are to acknowledge the nuances and
complexity in social issues, as well as increase police sensitivity training
(Gerster). At a grander scale, the solutions would be for the law to support public
health as well as marginalized communities vis-à-vis non-disclosure for both
HIV/AIDS and COVID-19 prosecutions.
References
Canadian Hemophilia Society. (2020). “Canadian Coalition to Reform
HIV Criminalization statement on COVID-19 and criminalization.” Retrieved from https://www.hemophilia.ca/criminalization-of-hiv-non%E2%80%90disclosure/?fbclid=IwAR0w11dXVZjhkjKf0elKvZvRORXrGnRgZZgVEXlumWg8FTJZ42brpoDYfB4.
Elliott, R., Peck., R., & Pelletier-Marcotte L. (2020) “Prosecuting
COVID-19 non-disclosure misguided.” Retrieved from https://www.thelawyersdaily.ca/articles/18816.
Gerster, J. (2020). “HIV-AIDS taught us not to police a
disease outbreak, say experts. Did the lesson stick?” Retrieved on Global News
from https://globalnews.ca/news/6932539/hiv-aids-pandemic-lessons/.
Image 1. (2021). Toronto People With AIDS Foundation. "Q & A: HIV & COVID-19." Retrieved from https://www.pwatoronto.org/q-a-hiv-covid-19/?utm_source=rss&utm_medium=rss&utm_campaign=q-a-hiv-covid-19.
Levesque, Alex. (2021). “A lasting stigma: tracing the history
of the AIDS crisis.” Retrieved on The Varsity from https://thevarsity.ca/2021/02/28/a-lasting-stigma-tracing-the-history-of-the-aids-crisis/?fbclid=IwAR1x1pMpROqasB4heD364n6iaKBH5ZM0bOtlSHCuctdOR2NAy24AkWRuVpU.