'I do not infect anyone,' Fighting for change to end HIV non-disclosure prosecution

A former Barrie woman is taking her fight to the Ontario Court of Appeal to clear her name after being convicted of aggravated sexual assault in 2013 for HIV non-disclosure.

"Every time I hear a car door slam, I think it's the police coming for me," said Jennifer Murphy.

Murphy has lived with that fear after being convicted twice since 2005 for having unprotected sex and not telling her partners about her HIV status.

"It was never my intent to infect anyone, and I haven't, and I make it a point to take my medication, so I do not infect anyone," Murphy said.

In 2013, she was sentenced to more than three years in prison for one count of aggravated sexual assault. Her name was added to the national sexual offender registry.

Court documents at the time showed her viral load was undetectable.

"When someone is undetectable from all the data and evidence that we have, there is really no risk of transmission of HIV," said associate professor of medicine at McMaster University, Kevin Woodward.

It's the reason Murphy is fighting to end the criminalization of HIV for people who are undetectable.

"People with HIV need to be protected under the law, not prosecuted," Murphy said. "The impact it's had on my life has been nothing short of devastation."

Though her lawyer didn't want to comment, she confirmed to CTV News in an e-mail she is representing Murphy in an appeal of her 2013 conviction.

HIV NON-DISCLOSURE PROSECUTIONS

According to the HIV Legal Network, roughly 200 people in the country have been charged under the law of sexual assault for non-disclosure. They say Canada also ranks fifth in the world for the number of HIV non-disclosure prosecutions.

"Canada is a global hot spot when it comes to HIV criminalization, and our extremely aggressive and severe approach has had a lasting impact on people living with HIV," said HIV Legal Network Policy analyst India Annamanthadoo.

She said under the law of sexual assault, people living with HIV can face life in prison and a mandatory designation as a sex offender for not disclosing their status to a sexual partner in cases where the courts believe there is a "realistic possibility."

In 2018, the Attorney General of Canada directed federal lawyers to stop prosecuting people who are undetectable. But this only applies to the territories.

So far, Ontario, B.C., Alberta and Quebec have adopted similar policies.

"The charges have dropped off partly due to that evolution and understanding of the science in the application of the law, but there are still, let it be known, still incidents where people are criminalized when there is little to no risk of transmission," said Annamanthadoo.

JAIL SENTENCES

Many experts and advocates also argue this approach has only created inconsistencies across the country.

"There is no clear certainty necessarily in terms of how and when people will be prosecuted, and we still have seen prosecutions of people, so there is still a context of fear that exists," said associate professor at the Institute of Criminology and Criminal Justice, Carleton University, Alexander McClelland.

A fear that Randy Davis, a sexual health coordinator with the Gilbert Centre, said only leads to further stigma.

"Most of these criminalization cases and prosecution haven't resulted in transmission, so folks are being prosecuted and put in jail simply for being ill," Davis said. "It creates more fear, and it keeps people from getting tested because (they think) 'If I don't know, I can't get prosecuted."

The federal government said it's committed to bringing transformation within the justice system.

Several recommendations were outlined in a 2019 report from the House of Commons Standing Committee on Justice and Human Rights.

These include removing HIV non-disclosure from the reach of sexual assault law and ending prosecutions except in the case of actual transmission.

"We have seen no action in terms of that (report). The federal government has done nothing," said McClelland.

Leaving people like Murphy fighting to clear her name while at the same time dealing with the implications of being a registered sex offender.

"They can't volunteer with children even though they had done that in the past. They can't work in jobs they previously wanted. They can be denied housing because people google their name. They are highly stigmatized in all aspects of their lives and what this does is exacerbate many mental health issues many people have as a result of being criminalized," McClelland said.

"I can't work on my career anymore because my PTSD is so bad," Murphy said. "Zero risk is zero risk, and I wish people would understand that."

GOVERNMENT RESPONSE

In a statement to CTV News, the press secretary for Justice Minister David Lametti said policy work is proceeding.

"As instructed by the PM in Minister Lametti's mandate letter, we will continue to ensure that Canadian justice policy protects the dignity and equality of LGBTQ2 Canadians. To that end, we are working on the implementation of the Federal LGBTQ2 Action Plan that will include sexually transmitted and blood-borne infections," the statement reads. "Minister Lametti remains committed to exploring options for criminal law reform that would address HIV non-disclosure cases, better support LGBTQ2 people, and build a society where everyone has equal rights and opportunities."

MISREPRESENTATION AND MISUNDERSTANDING

The response is being called tone-deaf by advocacy groups.

Randy Davis said it further stigmatizes the LGBTQ2+ community.

"Based on the fact that there is a higher risk, it takes the attention off the bigger picture of what HIV really is, an illness that can affect anyone at any time," the Gilbert Centre sexual health coordinator added.

In a follow-up statement, the minister's office said the government remains committed to challenging the stigma.

"Our government is committed to challenge the stigma and discrimination associated with HIV and AIDS by working with provinces, territories, and key stakeholders to bring meaningful transformation within the justice system."

It continues, "Minister Lametti remains committed to exploring options for criminal law reform that would address HIV non-disclosure cases and build a society where everyone has equal rights and opportunities. Important policy work in these areas is ongoing. Please continue to hold us to account."

MOVING FORWARD

Those fighting for change said they would recognize real action when some of the existing convictions are overturned.

Davis is also pushing to have Feb. 28 recognized as 'HIV is Not a Crime Awareness Day,' bringing the attention of HIV criminalization to the general public and those living with HIV.