On the Prosecution of HIV Non-Disclosure - a critical analysis

On 8 December 2018, the Public Prosecution Service of Canada (PPSC) published a directive about the prosecution of non-disclosure of HIV status. The directive acknowledged that HIV is primarily a public health issue, and one that has benefited from significantly improved outcomes and decreased risk and incident of transmission due to ongoing and admirable efforts from doctors, scientists and others working in public health. The directive also acknowledged the disproportionate effect of HIV non-disclosure laws on Indigenous, gay and Black people, who are more likely to be living with HIV.

This hard-won acknowledgement followed two decades of advocacy and intervention by several civil liberty and HIV/AIDS advocacy organizations, such as the Canadian HIV/AIDS Legal Network, who have worked to use scientific evidence and meaningful participation to reduce the stigmatization of people living with HIV.

In 2012, the Supreme Court of Canada released two important and highly publicized decisions about HIV non-disclosure. In R v Mabior, the accused, Winnipeg man, had failed to disclose his HIV-positive status to several woman with whom he had sex. Due to ongoing antiretroviral therapy, Mabior had a low viral load, and he made occasional use of condoms.1 In R v DC, the accused was a woman living with HIV, who had sex with her long-term partner once before disclosing her status.2 Both Mabior and D.C. were charged under ss. 265(3)(c) and 275 of the Criminal Code, and none of the complainants became HIV-positive.

These decisions clarified R v Cuerrier, the 1998 Supreme Court case in which the Court held that knowingly failing to disclose one’s HIV-positive status is a deception amounting to fraud, which is sufficient to vitiate consent as contemplated in s 265(3)(c) of the Criminal Code. Thus, failing to disclose status to a sexual partner before otherwise consensual, heterosexual sex could constitute aggravated assault, ostensibly because that sex posed a “significant risk of serious bodily harm” to the sexual partner, regardless of whether they contracted HIV.

In Mabior and D.C., the Court held that a significant risk of serious bodily harm is established only where there is “a realistic possibility of transmission”, although the Court did not identify the point between impossible and certain that was considered realistic.3 Further, the Court held that, to discharge their obligation to disclose before heterosexual, vaginal sex, the person living with HIV would have ensure both that a condom was being used and that their viral load was low or undetectable.

These decisions were soundly criticized. People living with HIV+ and working in fields related to HIV management and prevention felt that these decisions confused and drastically lowered the threshold for the duty to disclose.4 Critics also felt that, despite asserting that the law should remain open to “adapting to future advances in treatment”, the Court had disregarded advances already made.

For instance, in holding that both condoms and a low or undetectable viral load were necessary to discharge the duty to disclose, the Court had failed to take into account evidence, presented by the defence and by interveners, that the chances of individuals with low viral loads transmitting the virus were incredibly low.

Interveners had also called for a new and evidence-based threshold to distinguish between different types of sexual activity, reflecting drastic differences in attendant risk of transmission, noting that a combination of inconsistent or overly broad definitions and inconsistent thresholds had resulted in a decision that criminalized safe behaviour.5

As part of Robson Hall’s Critical Conversations series On Reproductive and Sexual Rights, Dr. Pierre J. Plourde, Medical Officer of Health with the Winnipeg Regional Health Authority and Professor at Max Rady College of Medicine, highlighted some of the scientific evidence showing both that the decision in Mabior was faulty and that the directive from the PPSC – which came weeks after his presentation – was long overdue.

Dr. Plourde’s presentation began by highlighting three cases involving the criminalization of HIV, one of which did not involve sexual activity of any kind. In R v Bear, the accused, an Indigenous who lives with HIV, spit bloody saliva in an officer’s face and was eventually convicted of attempted aggravated assault.6 The Manitoba Court of Appeal held that it was immaterial whether or not transmission of HIV via bloody saliva, which landed on the officer’s forehead, nose and eye, was actually possible. Bear acts as an extension of the logical shortcomings in Cuerrier and Mabior; even where the risk of transmission is not realistic, persons living with HIV are subject to harsher standards than the general population.

Like many HIV advocates, Dr. Plourde pointed to the role of media coverage of HIV non-disclosure cases in contributing to the stigma that stems from and leads to the prosecution of non-disclosure cases. Following Bear, for instance, Positive Living BC notes that “traditional and new social media provide a constant barrage of lurid details” on such cases, focussing coverage on those details that are “inflammatory, bizarre or titillating”.8 Media images of people living with HIV charged with non-disclosure do not reflect the complexity of disclosing status, which may be motivated by a range of factors including preventing from sexual partners.9

Importantly, Dr. Plourde noted that the expert scientific medical option is that HIV is difficult to spread during sex most of the time. Rather than reiterate the data and risk misrepresenting the factors at play, I will point readers to two consensus statements issued by medical experts and directed towards those working in government and law.

The first concerns global prosecutions for non-disclosure of HIV status, and provides an application of “the best available best available scientific and medical research data on HIV transmission, treatment effectiveness and forensic phylogenetic evidence” to criminal law contexts.10

The second is specific to Canada’s criminal law context, and among its revelations are that, among some groups of people living with HIV, life expectancy approaches that of the general population, that biting and spitting have, respectively, negligible and no possibility of transmitting HIV and that, even where neither a condom or effective antiretroviral therapy are in use, vaginal-penile intercourse poses a low possibility of transmitting HIV.11

Advocates’ goal of ending the criminalization of HIV altogether and focussing on HIV solely as a public health issue has not quite been reached, but the Attorney General of Canada’s directive is a long awaited update to laws around HIV non-disclosure that better accounts for the evidence regarding the transmission of HIV, and the realities of living with the HIV and its attendant stigma that, if adopted by the provinces, could make the lives of people living with HIV just a little bit easier.

Endnotes

1 R v Mabior, 2012 SCC 47.

2 R v DC, 2012 SCC 48.

3 Mabior, supra note 1 at para 4; DC, supra note 2 at para 2.

4 Canadian HIV/AIDS Legal Network, “HIV non-disclosure and the criminal law: An analysis of two recent decisions of the Supreme Court of Canada” (April 2014), online: AIDSLAW <http://www.aidslaw.ca/site/wp-content/uploads/2013/04/SCC_DecisionAnalysis-ENG.pdf> [AIDSLAW]

5 Patrick Hartford, A Critique of the Supreme Court of Canada’s Use of Statistical Reasoning in R v Mabior, Case Comment, (2014) 13 Law, Prob & Risk 169 at 174-5.

6 Pierre J. Plourde, “HIV Non-disclosure: Human Nature or Criminal Behavior?” (21 November 2018), Critical Conversations: Sexual & Reproductive Rights, online: <http://law.robsonhall.com/chrr/other-resources/critical-conversations/sexual-and-reproductive-rights/hiv-aids-harm-reduction-and-criminalization/>.

7 2013 MBCA 93.

8 Paul Goyan, “Heterosexuals on trial: How HIV non-disclosure vilifies straight folk”, Positive Living BC (January 2016), online: <https://positivelivingbc.org/wp-content/uploads/2016/01/Issue100_lowRes.pdf>.

9 AIDSLAW, supra note 4.

10 Francoise Barre-Sinoussi et. al., “Expert consensus statement on the science of HIV in the context of criminal law”, (2018) 21 Journal of the International Aids Society, online: <https://doi.org/10.1002/jia2.25161>.

11 Mona Loutfy et. al., “Canadian consensus statement on HIV and its transmission in the context of criminal law”, (2014) 25:3 Can J Dis Med Microbiol 135, online: <http://www.aidslaw.ca/site/wp-content/uploads/2014/06/Canadian-statement1.pdf>.