HIV Non-Disclosure & the Criminal Law: Legal Developments & Community Responses
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Criminalization of HIV non-disclosure causes fear and anxiety for people living with HIV. Over 100 people in Canada have been criminally prosecuted for HIV transmission or exposure since 1989, with a significant increase since 2003. The law around what constitutes a "significant risk" of transmission is unclear. A recent court case found no significant risk from condom use or when viral load is undetectable, but the law remains uncertain. Advocates are working to restrict expansive use of criminal law and challenge misinformation.
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HIV Non-Disclosure & the Criminal Law: Legal Developments & Community Responses
- 1. Criminalization of HIV non-disclosure: an additional source of fear and anxiety for people living with HIV Gay Men’s Health Summit Vancouver November 2010 Cécile Kazatchkine Policy Analyst Canadian HIV/AIDS Legal Network
- 2. About the Canadian HIV/AIDS Legal Network The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised HIV/AIDS.
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- The criminal law also applies to other sexually transmitted infection. But with the exception of three cases: one involving herpes (Ontario: trial decision: unprotected sex + non disclosure = assault - 1 year prison sentence- appeal dismissed) another Hepatitis B (unprotected sex - conviction plea sex. ass. – 1 year prison) and another Hepatitis C (New Brunswick - trial decision – unprotected sex + non disclosure = no duty to disclose because risk to transmit HCV through sex is low = acquittal for agg ass.) only people living with HIV have been prosecuted. We will also focus on the application of the criminal law to HIV exposure or transmission in the context of consensual sex because this accounts for the vast majority of cases in Canada. In theory, the law could also applies to risky activity like sharing drug equipment but we are not aware of any criminal cases where someone would be prosecuted for non-disclosing his status before sharing drug equipment. There has also been one case where a woman pled guilty to the offence of failing to provide the necessaries for life because she did not disclose to doctors during delivery and also breastfed her child who later tested HIV positive.
- What’s happening in Canada?The number of prosecutions has increased in recent years in Canada. Re data on gender/ Ontario v/s Canada: Based on 96 cases – 91 people. Our Chart up to date show 120 cases related to HIV non-disclosure It is interesting to point out that criminalization so far has mostly targeted men. 90% of the cases are against men. And most of them are against heterosexual men. And indeed, criminalization has often been presented, including in the media, as a tool to protect “vulnerable” women from HIV infection. This does not mean that criminalization does not have any impact on women HIV+. Few women have been prosecuted (10), including Aboriginal women and we cannot either exclude the indirect impact of criminalization on women’s life including, stress related to pressure from partners to have unprotected sex or blackmail and fear of potential prosecutions after they disclose their status to their partners. But so far, in terms, of number of prosecutions, the use of criminal law has been clearly focused on heterosexual men. We are only aware of 18 cases against men who have sex with men but data suggest that charges may be increasing in men who have sex with men. This may be due to the fact that there is a greater acceptance of HIV-related sexual risk among gay men than in the cases of women complainants who have brought complaints against their partners. Also, gay men have been the focus of HIV prevention education that have created awareness around HIV, safe sex practices and risks of transmission. Also, the data suggest potential change in the relationship between gay men and the criminal justice responses to HIV non disclosure. This is illustrated a recent case, in Ottawa where a young boy faces 26 charges shows that criminalization is getting into the gay community and can have serious impact on a community that remains the community the most affected by HIV. Conviction rate: from 1989-2009 A majority of HIV non-disclosure cases resulted in convictions : 63% in Canada Including both convictions after trial (32%) and convictions resulting from guilty pleas (31%) We also know that 22% of the cases involved HIV transmission No HIV transmission 38% HIV transmission + no HIV transmission 18% Unknown 22%
- Since non disclosure has been criminalised in Canada, we can observe an increase in the number of cases but also an escalation in charges An increasing number of defendants are facing charges of aggravated sexual assault which carries a maximum penalty of life imprisonment) as opposed to the lesser charges of aggravated assault which carries a max penalty of 14 years imprisonment. = but those are ones of the most serious offence in our criminal code and once again, can be used against a PHA even when they did not transmit HIV. As you may also remember, one PHA was convicted in Ontario of first degree murder for non disclosing his status in 2009 in the Aziga case. (Aziga was convicted of 10 counts of aggravated assault, one count of attempted aggravated assault and two counts of 1st degree murder for not disclosing his status to sexual partners. Murder charges require a specific intent. The prosecution argued that Aziga’s failure to tell the women “about his HIV status before, during and after he had unprotected sexual activity with them so they could obtain medical treatment, is evidence of the intent to kill [them].” This appears to have been the extent of the evidence regarding Aziga’s intent. ) It is the first HIV transmission murder conviction in the world There is a risk that the Aziga case may be interpreted as a basis for more regularly pursuing charges for murder or attempted murder, but that remains to be seen. To date we are aware of two cases where a person has been charged with attempted murder but these charges have not been proceeded so far Criminal negligence causing bodily harm (aggravated) assault – max penalty of 14 years imprisonment (aggravated) sexual assault – max penalty of life imprisonment Murder Attempter murder (max life imprisonment)
- There is no offence in the Criminal code that applies to non-disclosure specifically. The rule was created by the Supreme Court in 1998 that interpreted the general dispositions of the criminal code and ruled that non-disclosure could, in certain cricumstances amount to an assault. According to the Supreme Court non-disclosure transforms consensual sex into an assault when: Non disclosure exposed an individual to a “ significant risk of HIV transmission” And that the individual would not have consented to sex had he/she known of his/her sexual partner’s HIV status In such cases, non disclosure is considered a a fraud that invalidates consent to sex and which results in sex being classified as an assault The assault is more and more qualified as sexual assault because it takes place in the context of sexual activities and also “aggravated” because the S C has considered that exposing someone to HIV infection is endangering his life. 4 things must be proved beyond a reasonable doubt for a person to be convicted for non disclosure of HIV status: 1- Person knew that he/she was HIV positive but the law may also apply to a person who knew there was a risk she/he was infected with HIV (we heard abut 1 case where a person pled guilty for non-disclosing the fact that he might have been HIV positive. He had sex between an HIV test and the result of his diagnosis 2- an act considered as dishonest: HIV non disclosure lie about HIV status 3- A harm or risk of serious bodily harm (HIV transmission) as a result of the dishonesty 4- The person would not have consented without the dishonest act.
- What about the law? What are the recent legal developments in HIV non disclosure cases? As mentioned before, the rule is PHA has a legal duty to disclose HIV positive status before sex that represents a « significant risk » of HIV transmission How do we know what sexual activity constitute a “significant risk” under criminal law? According to Cuerrier, the decision by the Supreme Court of Canada : unprotected anal and vaginal intercourses represent a « significant risk » of HIV transmission = Duty to disclose But what about other sexual activities? How scientific progress, including anti retroviral treatment are taken into account? An man was acquitted in Switzerland because his viral load was undetectable based on a swiss statement by medical experts according to which people who have an undetectable viral load for more than 6 months, are under treatment and don’t have other STI’s or not infectious. Unfortunately, after 12 years, the law is still unclear . We don’t know with certainty what activities represent a significant risk of HIV transmission under criminal law and therefore, when there is a duty to disclose HIV positive status. In fact, the courts’ decisions are confusing and sometimes contradictory even if have recently seen some encouragement developments including in British Columbia. For a good understanding of the reasons why there is still uncertainty in the law, it is important to have a quick look at the judicial system in Canada In Canada the highest Court is the Supreme Courts which decision are binding (oblige) every other courts in Canada, whatever their level or province. It is a way to harmonize the case law, set big principles in the way to interpret the law in the code.Then each province has its own judicial system which include the trial courts at the lowest level and one court of appeal. Trials courts are bound by the decisions of the provincial CA and decisions of the SC. And CA are only bound by SC decision because at the provincial level they don’t have anything above them. CA have an important role. They have authority on lowest court in their province and an influential power on courts in other provinces. So far, most of the cases have been at the trial courts’ level only, and which did not really help to provide clarity in the law, but now, cases start to reach the Court of appeal level and recently we have seen few cases where the question of the interpretation of the notion of significant risk before a court of appeal. And these cases may provide some more clarity. Due to their importance in shaping the law in cases of HIV non disclosure, they are strategic cases and the LN as well as other organizations (BCPWA in BC or cocqsida in Quebec) intervened to provide their perspectives and expertise around the issue in the hope of influencing the decisions. We’ll see that we had recently some encouraging decisions
- The decision is very important because: It recognizes the role of the science and that prosecutions must be based on science not fear and prejudice. Limits the scope of the criminal law to the very circumstances where the risk of HIV transmission is real. It clearly rejects the Crown’s argument that sex can never be consensual in the case of non-disclosure. The Court recognizes that this is not the law in Canada. the Court recognises that “[c]riminal sanctions should be reserved for those deliberate, irresponsible or reckless individuals who do not respond to public health directives and who are truly blameworthy.” Again, we welcome the decision of the Court for recognizing that either condom use or an undetectable viral load can be sufficient to preclude criminal liability. However, we regret that it does not provide certainty that, in all cases, the use of a condom or an undetectable viral load will remove the requirement to disclose. Consequences of the decision Lower courts (trial courts) in Manitoba will be bound by the decision of the Court of Appeal, which means that, in Manitoba, a person living with HIV cannot be convicted for (aggravated) (sexual) assault for not disclosing HIV positive status if a condom is carefully used or he/she has an undetectable viral load unless it is proven that, given the specific circumstances of the case, the risk of transmission is increased by additional factors. Outside Manitoba, the decision will not be binding but is likely to influence lower courts and Courts of Appeal from other provinces in Canada. However, as of now, we cannot exclude the possibility that the decision might be appealed to the Supreme Court of Canada.