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Women, ART and the Criminalization of HIV (WATCH HIV)

Faculty of Social Sciences

About

What is WATCH?

WATCH is a research study about women, HIV, and justice!

Women, ART and the Criminalization of HIV (WATCH) is a community-based research project that will examine how the criminalization of HIV non-disclosure is understood and experienced by women living with HIV across Canada. The WATCH team will also examine how the criminalization of HIV non-disclosure impacts women’s social and sexual relationships, and their interactions with legal, health and social service providers.

The WATCH team is a national collaboration comprised of women living with HIV, academic researchers, and members of community health and social service organizations who are engaged in a three-year research project.

WATCH is led by Co-Principal Investigators Dr. Saara Greene, Dr. Angela Kaida, Marvelous Muchenje, and Alison Symington. The WATCH team also includes Research Associates, Co-Investigators, numerous Collaborators from across Canada. Find out more about WATCH team members here.

Using an arts-based approach and embracing the principles of community-based participatory research, the WATCH study objectives are:

  • To determine the level of knowledge and understanding women living with HIV have of the current criminal law obligations to disclose HIV-positive status in Canada;
  • To determine the perceptions that women living with HIV have about the consequences of criminalization of HIV non-disclosure;
  • To determine how these perceptions contribute to socially constructed identities of women living with HIV from their own perspectives;
  • To determine how these perceptions impact the lives of women living with HIV in their personal lives and as they interface with legal, social and health care sectors;
  • To identify current programmatic and policy responses to supporting women living with HIV as they relate to HIV non-disclosure; and
  • To provide recommendations for the development of appropriate and effective legal, health and social care strategies that respond to the socio-legal and health care needs and experiences of women living with HIV in Canada.

The WATCH team aims to achieve these objectives by combining an arts-based research approach, Body Mapping, with a critical policy and programmatic analysis. WATCH study activities include:

  1. Engaging women living with HIV in a series of workshops to explore perspectives and experiences of criminalization of HIV non-disclosure through Body Mapping; and
  2. Conducting a scan of health, social service and community-based services to identify programs that are available to women living with HIV related to the criminalization of HIV non-disclosure, as well as how the criminalization of HIV non-disclosure is integrated into existing organizational policies and practices.

The WATCH study has a number of potential impacts. WATCH will work to enhance people’s understanding that non-disclosure of HIV is being criminalized. WATCH will contribute to ongoing discussions about the appropriate role of the criminal justice system in the HIV response in Canada. WATCH will provide evidence regarding how the criminalization of HIV non-disclosure affects the lives of women living with HIV, which could support law reform advocacy and litigation activities aimed at changing the overly broad criminalization of HIV non-disclosure in Canada. WATCH will also contribute to developing processes to support women living with HIV in deciding whether, when, and how to disclose their HIV status, and in accessing the services they need while keeping in mind the current climate of HIV criminalization in Canada. Consequently, the WATCH study will provide both: 1. an increased understanding of how to reconcile the legal, social, and cultural aspects of HIV criminalization in order to develop supportive legal, health and social care environments for women living with HIV; and 2. tools to challenge the problematic aspects of HIV criminalization.

Women and the Criminalization of HIV Non-Disclosure in Canada

In the 1990s, the Canadian criminal justice system became involved in cases of perceived HIV exposure and/or transmission, prosecuting persons living with HIV for engaging in behaviours deemed “risky” in terms of possible HIV transmission.

Following the Supreme Court’s ruling in the case of R. v. Cuerrier in 1998 (1), using the law of aggravated assault or aggravated sexual assault in cases of alleged HIV non-disclosure became acceptable practice within Canada. Canada now has one of the more aggressive approaches to criminalizing perceived HIV exposure in the world and is one of the only jurisdictions that classifies HIV non-disclosure as aggravated sexual assault. 

People living with HIV in Canada are legally obligated to disclose their HIV status in specific circumstances. In 2012, the Supreme Court of Canada ruled that HIV disclosure is legally required to a sexual partner before having any sex that poses a “realistic possibility” of HIV transmission. The “realistic possibility” of HIV transmission is determined by considering the specific sexual acts, the person’s viral load, and whether condoms were used (2). Charges can be laid whether or not HIV is actually transmitted. The 2012 Supreme Court decision means that people living with HIV live with routine scrutiny and legal control. If convicted for not disclosing, a person living with HIV can spend time in jail and will be registered as a sex offender.

The Supreme Court also ruled that an extremely small risk of transmission (i.e., people living with HIV with an undetectable viral load, or people living with HIV who used a condom for vaginal intercourse) counts as “a realistic possibility” under the law – a more harsh legal requirement than the 1998 case suggested. This overly broad criminalization of HIV non-disclosure leads to injustices for people living with HIV, and also detracts from public health interventions to prevent HIV transmission (3,4).  

Formal laws are only one side of the equation.

Many people living with HIV experience the phenomena of “criminalization” as a result of both formal laws and informal surveillance and judgment.  The Supreme Court decisions contribute to the “innocent victim” vs. “guilty vector” characterization of people living with HIV, and to stigma, discrimination, surveillance and moral judgment of people living with HIV — well beyond the sphere of sexual activity.

The criminalization of HIV non-disclosure is of concern to women living with HIV in Canada (5, 6).

As noted by the Canadian HIV/AIDS Legal Network, “criminalization is often described and perceived as a tool to protect heterosexual women from HIV infection and enhance women’s dignity and autonomy in relation to sexual decision-making…it is the law of sexual assault that is used in cases of alleged non-disclosure, a body of law traditionally used to protect women from gender-based violence” (5). Some research has also been conducted to understand how women living with HIV experience informal surveillance.  Some women living with HIV report that they feel as if they are under constant surveillance by health and social care providers, family, friends and society in general (6), which undermines their humanity and personal dignity. This is particularly the case for women who are living in poverty, women who use drugs, racialized women, women who have a precarious immigration status, and Indigenous women who continue to confront the long-term effects of colonization (7).

References:

  1. v. Cuerrier, [1998] 2 S.C.R. 371.
  2. Criminal Code, RSC 1985, c C-46 s 215(1)(a) & (2).
  3. Patterson, S.E., et al. (2014). The impact of criminalization of HIV non-disclosure on the healthcare engagement of women living with HIV in Canada: a comprehensive review of the evidence. Journal of the International AIDS Society, 18(1), 20572-20572.
  4. Kaida, A., et al. (2015). Sexual inactivity and sexual satisfaction among women living with HIV in Canada in the context of growing social, legal and public health surveillance. J Int AIDS Soc, 18(Suppl 5), 20284.
  5. Canadian HIV/AIDS Legal Network (2012). Women and the Criminalization of HIV Non-Disclosure. Available at http://www.aidslaw.ca/site/wp-content/uploads/2013/04/Women_crim-ENG.pdf.
  6. Greene, S., Ion, A., Elston, D., Kwaramba, G., Smith, S., Loutfy, M. (2015). (M)othering with HIV: Resisting and Reconstructing Experiences of Health and Social Surveillance. In B. Hogeveen & J. Minaker (Eds), Criminalized Mothers, Criminalizing Motherhood (pp.231-263). Toronto, ON: Demeter Press.
  7. Allard et al. (2013). Criminal Prosecutions for HIV Non-Disclosure: Protecting Women from Infection or Threatening Prevention Efforts? Women and HIV Prevention in Canada, (Ed. J. Gahagan). Women's Press, Toronto, p. 195-218.

What is Body Mapping?

Body Mapping has been used for many years as a way for people to better understand themselves, their bodies and the world they live in.

It was South African artist Jane Solomon and psychologist Jonathan Morgan who transformed the arts-based approach during the roll-out of antiretroviral therapy in Khayelitsha township in 2001 as a form of art and narrative therapy. Body Mapping has been used in a number of settings (including over 10 different countries in sub-Saharan Africa and in Canada) and has a long history of being used to explore sensitive topics including sex, sexuality, health challenges, and women’s experiences receiving HIV treatment; Body Mapping is a tool that allows women to see themselves as more than the disease.

 

Over time the methodology has evolved.

Body Mapping was first seen as an advocacy tool to bring attention to the issue of HIV and AIDS in Africa. Body Maps communicate feelings and experiences and can raise awareness about political, personal, health, social and legal issues. It rapidly became a tool for story telling, helping people living with HIV to sketch, paint, and put their journeys into colours, symbols and words. Using creative exercises, Body Mapping is a way of using art to tell life stories while at the same time engaging in a process of self-healing. Some of the steps in creating a Body Map allow participants to acknowledge what causes them pain and what brings them joy. The process ends with an acknowledgement that women living with HIV are much more than the disease.

The WATCH team has slightly adapted the Body Mapping exercises for use as a research tool to explore the impacts of criminalization of HIV non-disclosure law in Canada and its impact on women living with HIV.  The entire WATCH team received training in Body Mapping from Tricia Smith, who spearheaded Body Mapping work with CATIE many years ago. For the WATCH study, a total of seven Body Mapping workshops will be conducted with women living with HIV from British Columbia, Saskatchewan, Manitoba, and Ontario. Participants will be guided through a series of creative tasks that build on one another. The Body Mapping workshops will be done in a group setting where participants will support and inspire each other as they reflect on their own lives, personal journeys and experiences living with HIV. Since criminalization of HIV non-disclosure is such a complex and personal topic, the WATCH team is committed to providing a safe and supported space for women to think about and express their experiences. Check out Body Maps created by WATCH team members here.