A Criminalization of the Mind: Mental Health, Sexuality & Relationships of People Living with HIV Under the Context of HIV Criminalization in Canada

In Canada, the disclosure of HIV has been mandated by law since 1998. In 2012, the Supreme Court clarified the law. Now, PHAs are legally mandated to disclose their status to their partners when there is a ‘realistic possibility of transmitting HIV’. As such, the use of condoms while having a low viral load no longer requires disclosure, from a legal perspective.

This paper examines the strategies by which straight and LGBTQ women and men understand and navigate the criminalization of non-disclosure of HIV and discusses the ramifications of this legal approach upon the mental health, sexuality and relationships of PHAs.

This qualitative study is based upon semi-structured, open ended interviews with 75 HIV positive straight and LGBTQ women and men across Ontario. The data were coded using the guiding principles of grounded theory.

Primarily, the law impacts the mental health of PHAs. It lowers their perceived sense of self-worth and fosters loneliness and isolation. It leads to a ‘criminalization of the mind’ where the spectre of the law keeps many PHAs out of relationships and decreases, if not truncates, their sexual activity.

PHAs often feel vulnerable in their relationships, as they fear criminalization being used as a weapon against them during the potential demise of their relationships. PHAs contend with these concerns in a variety of ways – by staying in the relationships they’re in (whether they’re healthy, unhealthy or abusive), documenting their disclosure in a variety of ways (so they can prove their disclosure in court), pursuing relationships only with other PHAs (so as to avoid criminalization) or by avoiding sexuality and relationships altogether by becoming celibate.

This study highlights the need for public policy to evolve to more adequately reflect and contend with the experiences of PHAs under criminalization.