Black participants described how their knowledge and experiences of living with HIV existed in relationship to discourses about adherence to ART and undetectability. Mapping the experiences of ACB people, we found that ACB participants engaged in the discourses and the health work practices of HIV healthcare and treatment to achieve undetectable viral load and optimal health outcome. In this article, we refer to this work as “the health work process of retention in HIV healthcare and adherence to treatment” (Figure 1). We first present the health work practices that participants engaged in that were reminiscent of the dominant discourses of HIV healthcare and treatment. We then show the disjuncture between Black people’s daily experiences and what HIV healthcare guidelines and practices count as the work of reaching and maintaining undetectability, driven by discourses of retention in care and adherence to ART. The concept of disjuncture refers to “moments when people know something from experience but are told or taught something quite different” (62). By making explicit this disjuncture, we uncover that structural violence embedded within legislative frameworks, policies, and institutional practices produce structural and social determinants of health inequities that shape the social world of Black people and constrained their health work of retention and adherence to HIV healthcare and ART. We then connect and show the ways that these inequities impacted ACB participants’ health work process of retention in HIV health and adherence to ART. Lastly, we outline research, practice, institutional and policy implications of these findings.
Mapping the Work of Adherence to ART and Achieving and Maintaining Undetectability
Findings revealed that the health work of reaching undetectability involves a set of medical activities that require people living with HIV who are on ART to stay engaged in care and adhere to medication (55-57). A critical aspect of this process is regularly scheduling medical appointments, attending clinical care and routine follow-up visits, monitoring HIV viral load and health outcomes through regular diagnostic laboratory work, and filling and refilling prescriptions. Adherence to ART also entails taking medication every day as prescribed. Participants explained that their physicians and pharmacists repeatedly stressed the importance of adherence to ART, highlighting possible consequences for failing to do so, including having drug resistance, a detectable viral load, and poor health. For example, Claude, who had detectable viral load when he first accessed HIV healthcare, explained that: “Rather than do the test [viral load monitoring] every six months, [the doctor] did them every three months to just observe that I am undetectable, and he talked about compliance. [The doctors] stressed that if I fail to take [my] medication, [I am] going to feel sick.”
Healthcare providers engaged in HIV healthcare explained that engaging in routine medical care was necessary to assess and monitor treatment efficacy and effectiveness, viral load levels, side effects, patient compliance, resistance, disease progression, and health outcomes. While several healthcare providers acknowledged their role in HIV healthcare delivery, they conceptualized the work of achieving and maintaining undetectability and optimal health outcomes as an individua responsibility. Healthcare providers emphasized that people living with HIV are expected to take responsibility for their health by continuously engaging in healthcare, adhering to ART, and following clinical advice. A physician based at an HIV clinic elaborated that:
There are things that I have no control over sometimes, like people not showing up for appointments. Today I just had one of those hour-long counselling sessions, but he ultimately did not show up, a young Caribbean man. Sometimes I can only do as much as I can. However, the patient also must do things I ask them to do, mainly instrumental things like, “here is the thing that you need to do for me to help you.”
Locating the Disjuncture: Contesting the Dominant Discourses and Work Practices of HIV Healthcare
Black participants living with HIV contested the discourse and practices of HIV healthcare and the concept of undetectability based on the various forms of oppression and inequities shaping their day-to-day realities. Although participants acknowledged the significance of HIV care and were happy with the availability of ART, many participants expressed that achieving and maintaining undetectable viral load was “more than taking a pill.” James, an immigrant who had lived in Canada for less than one year, expressed that: “undetectability is a fallacy in itself. [It] is not for Black bodies.” Participants described undetectability as a concept that is produced by standardized dominant discourses and institutional bodies that only privilege White people who can consistently engage in care, adhere to ART, and achieve viral suppression while ignoring the lived realities of Black people. Black participants explained that experiences of precarious immigration status, housing, employment, and lack of health insurance and drug coverage contributed to the uncertainty of reaching undetectability. Eunice elaborated that:
It [undetectability] is for White people who have the privilege of proper social support, housing and other benefits that come with them. We [Black people] struggle with so many other issues that being undetectable is almost a dream. You could be undetectable today and tomorrow lose your immigration case, interim coverage, medication [drug coverage], house or job because you rely on a work permit that is dependent on your legal status. Therefore, if you are undetectable, it is because you have the privilege of having a job. However, someone in the shelter system would probably never get undetectable until they can stabilize themselves and get their needs allowance.
Black participants expressed that biomedical discourses of HIV healthcare including the concept of undetectability produce class and racial differences by categorizing people living with HIV as “good” versus “bad” patients. People living with HIV who adhere to ART and manage to get their viral load to undetectable levels are labelled “good” patients. However, those perceived as nonadherent to ART and maintain detectable viral load are considered “bad” patients. Julian, a frontline worker who was living with HIV, expressed:
I think it [undetectability] puts people into the category of good or bad patients. The bad patient is the detectable one. I have seen patients who take the treatment well and everything, but they struggle to get even [achieve and maintain undetectable viral load]. They keep fluctuating. I do not know whether it is their body, but that does not make them bad clients because they do their best.
Black participants noted that the UNAIDS 90-90-90 treatment targets and the 95-95-97 Fast-Track strategy are far from being reached because of the systemic inequities faced by Black communities. Black people are disproportionately represented among the remaining 10-10-10%, leaving them behind. Lilian expressed: “We have seen already with the 90-90-90. But there are those 10% that are not being achieved, and it is even more than 10% because there are other things that prevent people from continuing to stay in care.” Participants asserted that conversations about undetectability should be grounded in the actualities of Black people. Additionally, tackling systemic barriers Black people face should be prioritized and integrated into HIV healthcare frameworks and programs.
Uncertainty of Achieving Undetectability: Unpacking Structural Violence Shaping Health Work of Retention in Care and Adherence to ART
Black people’s description of their social world and lived experiences illuminated how structural violence embedded within health systems, legislative frameworks, and institutional practices produced inequities that constrained their retention in care, adherence to ART, and contributed to the uncertainty of achieving and maintaining undetectability. Structural inequities in relation to social determinants include a) financial instability, b) Immigration status, homelessness and housing instability, c) food insecurity, d) health systems barriers, e) stigma and discrimination, f) systemic and anti-Black racism, g) comorbidities and h) criminalization of HIV non-disclosure.
Health System Barriers and the Work of Managing HIV and Related Comorbidities
In addition to HIV, Black participants reported that they lived with one or more comorbidities such as ulcers, diabetes, high blood pressure, high cholesterol level, and mental health issues, including depression, anxiety, stress, and trauma. Participants associated their experiences of mental health with the challenges and violence they faced navigating discriminatory systems, including housing, employment, immigration, healthcare and welfare systems, social situations such as substance use and addiction, and history of trauma from political conflicts and colonialism in home countries. Key informants and healthcare providers reported that health system barriers such as the lack of comprehensive healthcare and drug coverage and culturally responsive services, time, and patient-provider power dynamics constrained Black people’s efforts to manage comorbidities and effectively achieve optimal health. Provincial public health insurance plan does not provide comprehensive coverage for all healthcare services.
When asked to reflect on healthcare delivery, Black people living with HIV emphasized the importance of “time”. There was expectation that healthcare providers would allocate adequate time to consult about Black patients’ overall health and subjective realities. However, Black people reported receiving suboptimal clinical care because the time allocated for consultation was short of addressing their healthcare needs. The average time participants reported spending with their doctors was between 15-20 minutes. Francis explained that the physician was often in a hurry to “get him out of the door,” even after waiting for a long time before seeing the doctor. Participants also expressed that they were subjected to “one issue per visit” by their healthcare providers. Eunice expressed:
Time is an issue because you might have many questions and many things you want to discuss with your doctor. However, the doctor’s rule is to bring one issue at a time, do not bring many issues. If I do not talk about all the other issues affecting me, then the doctor cannot pick out the cause of my condition. If they have more time with you to explore and listen to your narrative, they should be able to pick up [that] this headache is not just a migraine, there is something [else]. The person could be stressed because the child is not doing well in school or following up on their refugee papers. It might not have anything to do with HIV.
Healthcare providers reported that they see so many patients that they find it challenging allocating patients the time they need to talk about their health issues. A social worker stationed at an HIV clinic noted that the short clinical time allocated “is very challenging, and sometimes patients seep through the crack.” Under the Ontario Insurance Plan (OHIP) schedule of Benefits and Fees, ‘fee for service’ is the model that doctors bill and generate revenue for their services. While physicians can address as many issues as they want, the ‘fee for service’ model permits them to bill only one issue per patient per visit.
Black participants living with HIV (n=17) who primarily identified as recent immigrants to Canada indicated that lack of knowledge of how the Canadian healthcare system is organized obstructed their ability to navigate and access HIV-related healthcare services. Participants failed to look for general practitioners to treat their underlying conditions because of lack of knowledge of the roles played by different categories of healthcare professionals. Participants with HIV specialists as their sole healthcare provider expressed that they did not receive comprehensive care, including treatment for underlying health conditions. They noted that HIV specialists lacked adequate knowledge and willingness to address other health conditions. The HIV specialists prioritized monitoring viral loads and administering ART over assessing other underlying conditions and factors impacting Black people’s health. Further, many healthcare providers lacked cultural competency and interest to address all the health needs of Black people. The power imbalance between Black people and their doctors prevented them from self-advocating for more consultation time and culturally responsive care. Brenda, who was volunteering at a community healthcare centre and self-identified as a Black immigrant living with HIV, elaborated:
Most of my clients are newcomers. They do not know the system [and] the difference between a primary healthcare provider who is the GP [general practitioner] and an HIV specialist. If you have a primary healthcare provider who is vast in other medical areas than HIV, they can pick different things. Some [clients] may just see an HIV specialist who might just look at HIV, but they do not explore other things. Most HIV specialists just think about CD4 count, is your viral load undetectable, and that is it! Most clients that I see do not even have the information to know how to advocate for themselves, or they might have, but there is that power dynamics of feeling that this is a doctor and me I am just a patient, especially if the doctor is white.
A critical aspect of managing HIV and comorbidities was scheduling multiple medical appointments and accessing consistent treatment. Black participants detailed that scheduling multiple medical appointments and accessing clinical care for the various underlying health conditions they were living with was challenging and frustrating because of difficulty finding and booking appointments with healthcare providers and long wait times. Medical appointments such as clinical and follow-up visits, diagnostic and laboratory work, and social support services conflicted and competed with personal priorities and commitments such as childcare, school, food, and immigration processes. Mary elaborated: “sometimes you have a lot of different appointments, HIV, or eye doctor’s appointment and sometimes you have like 5 or 6 appointments in one month. It is not easy to attend all, and you need transport. I try to manage, but sometimes it is challenging.” Participants often missed HIV clinical care and follow-up medical visits because most appointments occurred during business hours. Catherine, who was living with multiple conditions, explained:
I miss HIV appointments because sometimes, I have medical appointments with two doctors. Maybe I have a diabetes appointment, and I have HIV appointments. I cannot make both because maybe they came at the same time. So, I have missed and cancelled several appointments.
Homelessness, Housing Instability, and the Work of Adhering to ART
Black participants in this study experienced homelessness (n=7) and housing instability (n=13). Those experiencing housing instability lived in emergency shelters, were precariously housed in shared accommodations, assisted living or transitional housings. Black people associated their precarious housing situations to financial instability, high rental costs, unemployment, and precarious immigration status. Black participants reported that homelessness and housing instability constrained ART adherence. Precariously housed participants feared that routinely taking medication in the presence of roommates and other shelter residents could lead to involuntary disclosure of their HIV status and subject them to stigma, discrimination, and violence. John, who was on ODSP and living in a shared accommodated, articulated the impact of housing instability on adherence to ART:
We were only given about six hundred [CAD 600]. We could not use more than $600 [on rent]. So, the only option was for the four of us to share accommodation. We have to share the master bedroom with two people. The other roommates are in two smaller rooms. What this means is that these people don’t know my status [HIV]. I cannot put my meds anywhere. My meds go in my laptop bag. I cannot take them openly when my alarm goes on at 8 am. I have to take my meds in the bathroom. If my roommate is in the bathroom, I will wait for him to come out. Sometimes I forget. I have an alarm that reminds me that I need to take my medication at 8 am and then another one at 9 am. However, if I miss taking it and I go to work, you see that dynamic?
Black participants (n=6) living in shelters reported that strict shelter regulations and practices made it hard to adhere to ART. Emergency shelter residents were required to vacate night-time shelters early in the morning every day and roam around until shelters reopen during evening hours. Such routines made it challenging for most participants to take medications as prescribed. Client support and accountability policies that organized the work practices of caseworkers produced perverse effects. Shelter rules requiring residents to report their daily itineraries to caseworkers every morning interfered with their medical appointments’ schedules. Additionally, caseworkers whose roles included risk assessment and monitoring their clients’ activities were seen as insensitive, having little compassion, and ignoring their clients’ privacy and confidentiality needs. Participants expressed that those caseworkers forced them into involuntarily disclosing their health conditions and reasons for medical visits. Fear of breaking shelter regulation and losing accommodation forced participants who had early morning appointments that required them to leave the shelter before their caseworkers reported to work to miss their clinical visit.
Black people and healthcare providers reported that homelessness and housing instability experiences intersected with social factors such as mental health, drug use, addictions, and violence, constraining their efforts to adhere to ART. Joyce, who was a frontline worker living with HIV, explained: “If you are homeless and on drugs or got mental health issues, you might not be able to take your medication the way that you are supposed to be taking your medication.” Healthcare providers acknowledged that housing was a significant barrier to ART adherence. They noted that high rental costs, unsafe living conditions, stigma, and discrimination compromised Black people’s adherence to ART and subjected Black people to violence, mental health, and addiction issues. Providers noted that Black patients feared having ART in their possession because of HIV stigma. A physician based at an HIV clinic elaborated:
Housing is a huge barrier. I hear from many people [that] housing in Toronto is a nightmare because of the high rent cost. It is horrific right now that many people have shared space. You will hear many people all living in one bedroom. It’s a lot of shared communal living. Here is the problem. People who live in shared living situations cannot have their pills stored inside medicine cabinets or anywhere communal. People often tell me that a roommate, a family stumbled upon their medication, realized they were HIV positive and kicked them out of the house. So, people will hide their medication or taking medication becomes secondary to their disease. Because of stigma, people are so protective that they do not want to access medication anymore.
Food Insecurity and the Work of Taking Prescribed ART with Food
Black people reported that food insecurity constrained their efforts to adhere to ART and medical recommendations. Healthcare providers advise people living with HIV, and especially those with other medical conditions such as diabetes or hypertension to eat certain foods to stay healthy. Participants (n=11) were prescribed ART that must be taken with food. Black people could not access or afford healthier and culturally responsive food options necessary to maintain a healthy lifestyle and accommodate their health conditions, dietary restrictions and ART prescription requirement because of inadequate income and competing priorities. Participants on ART prescribed to be taken with food reported missing their dosages because of lack of food. Catherine expressed:
One of the setbacks for African and Caribbean people adhering to their medication is that some medication works better if they take it with food and water. However, many people from Africa Caribbean backgrounds are barely surviving or have meagre income. They cannot access food to help the body boost the immune system…Most of the time, the price of good quality food was outside the means of people of Caribbean and African descent.
Black participants established a relationship between food insecurity, financial instability, and housing instability. Participants living shelters were provided with unhealthy and unbalanced dietary food options such as canned, frozen, or catered meals. Further, shelter regulations and living arrangements restricted cooking within the premises. Shelter residents had no choice but to eat meals provided in the shelter. Accessing adequate and high-quality food competed with other priorities for participants with families and children, including paying rent and transportation costs. Participants noted that paying rent for family housing often consumed the limited income that they received from ODSP. David expressed:
All the money they [ODSP] give you goes to the rent. So, I cannot eat. I am on medication, and I have to take care of my kids. I know they [ODSP] give me money, but the money goes to the rent, so it’s like they do not give you anything. When they give you the money, and it all goes to the rent, that means you cannot eat, and the children cannot eat. If I can’t eat and I am told I need to eat before medication, where is the food? All the money I used to pay rent.
Participants who were prescribed ART that had to be taken with food and lived in shared accommodation or shelters reported that they took their medication without food because of privacy and confidentiality concerns and fear of stigma.
Financial Instability, Competing Priorities and Reliance on Social Welfare Benefits
Lack of comprehensive public healthcare and treatment coverage or private insurance intersected with financial barriers, making it challenging for Black people living with HIV to access treatment for comorbidities and related healthcare services and have optimal health outcomes. Black participants who were primarily unemployed or doing informal low-wage jobs expressed that they did not have drug coverage and could not pay out of pocket for healthcare services, including transportation costs, laboratory services, and medication. Doctors recommended and made referral for free healthcare services or elective lifestyle activities such as massage, gym, and healthy eating as alternative approaches to addressing health system barriers and accessing healthcare services that Black people needed but could not access. Participants noted that places offering free medical, support and elective services had long waiting lists and wait times. Physicians also cited challenges in referring patients to free health and wellness services. A physician elaborated:
You will often find that we do referrals for people to see a psychiatrist, and it takes two months. You find out two months later that nobody has called the patient. So, there is a problem in just getting patients seen, and there is even a bigger problem in getting the services that are not covered by OHIP, like counselling services. I would send a referral to the trauma program, and it is always rejected that “we are not taking any new patients.” So, it sounds good on paper, but it does not work in real life.
At the time of the interview, all the Black people we interviewed reported that they relied on Ontario Disability Support Program (ODSP) to access HIV medication and extended healthcare benefits, including housing, transport, special diet, dental, and eye care. The ODSP is a program under the Ontario Ministry of Community and Social Services (MCSS) that provides “longer-term income support for people with disabilities” (63). However, many participants reported that the income benefits received were limited and did not meet all their basic needs. It was challenging and stressful for participants with large families to afford housing, food, and recreational activities. David, who had a large family, was living with multiple comorbidities and was depending on ODSP for rent and food expressed:
That one [housing] is always giving me stress, constantly worrying. We are four; one boy, one girl, my wife and me. When I was alone, they paid rent 550 to 600 [CAD]. When my family came, they gave us [CAD] 918 for the rent. I cannot rent a two-bedroom apartment for 918, and I am sick. I am not working now.
Many participants indicated they wanted gainful employment to generate adequate income to supplement inadequate ODSP benefits. However, strict policies and institutional practices regulating access to social services undermined their agency. Participants expressed tension between seeking gainful employment and continuing to depend on ODSP financially.
The ODSP policy states that its aim is “to help the province’s most vulnerable citizens” while working to “promote an ethic of self-reliance through employment” (MCSS, 2016). However, the process of establishing and maintaining eligibility for benefits subjected applicants or recipients of ODSP to punitive income and financial security assessments. Recipients of ODSP are required to report their income for assessment. Under Section 5(1)(c) of the ODSP Act, the asset limit is set at $40 000 for a single person, $50,000 for a couple and $500 for each dependent other than a spouse. All interest earned on assets within this ceiling is exempt from income under ODSP (64).
Black participants expressed feeling trapped within the welfare system because of these draconian and punitive policies and institutional practices. Noting that their health and survival were dependent on guaranteed access to ART and extended social benefits, participants expressed fear and worry over the possibility of losing their ODSP eligibility as a result of getting gainful employment. Participants feared they would channel all income made to paying for medication and have nothing left to cover basic needs like food, housing, and clothing. Indicating that Black people living with HIV are subjected to precarious employment conditions, minimum wage, and premature dismissal because of their lack of or limited education, anti-Black racism and disability, participants expressed that they could not afford medication and other basic needs. Thus, the need to continue accessing drug benefits becomes the primary justification for remaining in ODSP. Lucy, who expressed her desire to work but feared losing ODSP, articulated:
When I decide to remain in ODSP, I know the drugs will be expensive. If you are sure of getting the drug every month, your health is guaranteed. You are sure you will live well. You are not paying for it [ART]. I might be working every month. I think I’m strong [and] money is coming. What if I am unable to work? What happens? Will I be able to pay for my medication? I might not use what I have to pay rent. I do not know if I will even be able to save enough to pay rent.
Participants who decided to seek employment rather than remain in ODSP expressed that they had to discontinue ART because they could not afford to pay for treatment out of pocket. Doing informal jobs and working odd hours also contributed to participants’ non-adherence and inability to stay in care. For these reasons, many participants called for universal access to drug coverage, irrespective of their employment status. A participant stated: “that is why I said that medication should be there for everybody. The medication [insurance] should be 100% sure [universal] that you are getting your medication every month, even when working.”
The Work of Dealing with HIV Related Stigma, Racial Discrimination, and Anti-Black Racism
Key informants and healthcare providers commonly noted that racial discrimination, systemic and anti-Black racism, prejudice, and stigma resulting from discriminatory and punitive policies produced inequities in accessing social determinants of health including gainful employment and healthcare, and subjected them to poverty, financial instability, and fear of losing healthcare benefits, leading to continued dependency on ODSP and feeling of being trapped in the welfare system. Participants expressed that HIV status and history of living on social welfare benefits added another layer of stigma and discrimination, denying them an opportunity to access gainful employment. Esther elaborated:
You leave ODSP and look for a job. Somehow in the paperwork, they are going to find out that you have HIV. Questions like, “what have you been doing in the last three months?” “I was on disability.” “Can you tell us what form of disability you have so that we can accommodate you?” They will not tell you why exactly they want to know, but they will tell you, “So that we can accommodate you.” Once you have been honest and sincere with them, the company’s accountant has to key in the insurance costs. You become gullible because the drugs are expensive.
Black participants living with HIV (n=9) recounted how they were increasingly policed and surveilled within healthcare settings because of being Black and the perception that they were dangerous, aggressive, and a public threat. Charles, who was dealing with mental health issues at the time of the interview, described his experiences within a mental health institution:
I started having mental health issues around the same time when I was diagnosed with HIV. It’s been difficult for me to access healthcare. If I am going through an anxiety episode, I feel that as a person of colour, I may be looked at as maybe aggressive, rude, or dangerous once I enter the healthcare system. I get sort of feedback based on how people react around me. You are sitting down and looking up and seeing like three or four security guards suddenly sitting there. I feel that it has to do with the colour of my skin. While the alarm [surveillance and policing] is this high, for a [person] with mental health issues like me, in my head, I start asking, why are all these happening? Is it just me? What is going on here?
Black participants and healthcare providers indicated these oppressive and violent experiences of stigma, racial discrimination and anti-Black racism negatively impacted Black people’s mental health, attitude, and behaviours towards seeking healthcare, and decision to adhere to ART. Black participants with precarious immigration status (n=11) reported that they avoided, delayed, or stopped accessing healthcare because of fear that their HIV-positive status could be flagged in the immigration process and risk losing their immigration status, or face deportation or criminal charges. Uncertainties and confusion around when, where, and how to disclose one’s HIV status to healthcare professionals resulted in Black people experiencing prejudice, stigma, and threats of criminal charges. Rose explained how a dentist threatened her son and herself with a lawsuit for failing to their HIV status:
They [dental staff] are not supposed to discriminate against us. They [staff] were wrong at first because they did not give us the form to fill before attending to us, and they have no right to do that. We fear it affecting our permanent residence application because we just got into the country. We do not want any issue with the police [or] with the courts. You know the fear is there. We want to be law-abiding citizens, and all our claims are accepted, and we get our permanent residence.
A frontline worker who self-identified as a Black person living with HIV expressed: “there is still HIV stigma in Canada. The challenge of stigma [is that] when someone is referred somewhere else, the way they are treated at the first appointment will determine whether they are retained in care or not.” A physician explained: “A woman from a Caribbean country was not taking her medication regularly… It is quite apparent that it is because of the stigma of HIV.
These violent and punitive experiences of racial discrimination, stigma and anti-Black racism made it difficult for Black people to adequately adhere to ART and reach an undetectable viral load, leading to poor health.
HIV Criminalization, Privacy Concerns, Mistrust, and the Patient-Provider Relationship
Black people reported that they did not discuss their sexual health practice, risk, and needs with their healthcare providers due to ongoing HIV criminalization. In Canada, the criminal law is currently used to charge and prosecute people living with HIV who allegedly expose their sexual partners to HIV, fail to disclose known HIV-positive status before consensual sexual contact, or transmit HIV sexually (65, 66). The Supreme Court of Canada (SCC) ruling in the cases of R. v. Cuerrier in 1998 and R. v. Mabior and R. v. D. C in 2012 set precedents where people living with HIV are legally required to disclose their HIV-positive status to sexual partners before engaging in sexual activities that pose what the Court calls a “realistic possibility of transmission” (67). In 2018, the Attorney General of Canada issued a directive under section 10(2) of the Director of Public Prosecution Act (68) directing that the Director of Public Prosecutions :
Shall not prosecute where a person living with HIV has maintained a suppressed viral load (i.e. under 200 copies of the virus per millilitre of blood) because there is no realistic possibility of transmission; shall not prosecute where the person has not maintained a suppressed viral load but used condoms or engaged only in oral sex or was taking treatment as prescribed unless other risk factors are present, because there is likely no realistic possibility of transmission in such cases; and shall prosecute using non-sexual criminal offences instead of sexual offences where this would better align with the individual’s situation, such as cases where the individual’s conduct was less blameworthy; and must take into account whether a person living with HIV has sought or received services from public health authorities, to determine whether it is in the public interest to pursue criminal charges.
Black people highlighted their vulnerability and fear of exposure to HIV non-disclosure criminal charges. Participants were concerned about the uncertainty of reaching and maintaining undetectability due to the above-discussed structural inequities that constrained their retention in care and adherence to ART. This uncertainty produced fear and negatively influenced Black people’s attitude towards healthcare systems and services. Black people also reported a lack of engagement in care and poor ART adherence due to concerns that accessing healthcare services would flag their HIV status within the immigration system, leading to the impairment of legal status and deportation applications. Fred articulated:
The law says you cannot be criminalized if you have an undetectable HIV viral load. However, there is already a caveat there. What if somebody decided you are detectable? What if all these other circumstances and life struggles make the viral load spark up? It can spike up. When you are sick or when you are unwell. So, when I have HIV, I am still a criminal. The law does not say I am not. So, when providing sexual history, I do not want to tell them. Some want to ask you about sexuality, and I do not want to tell them right because there are all these things. I still have an immigration case going on. I do not know who will have access to medical information. Already the refugee board has a lot of my medical information.