HIV Non-disclosure and R v Murphy - Stefan Kriening
The issue of the criminalization of HIV non-disclosure has become a more widely discussed and debated topic since the Supreme Court of Canada’s decision in R v Mabior. It can be argued that the decision forces an overly harsh punishment for people who do not disclose their HIV status prior to intercourse, even if they have a low chance of transmitting HIV to their partner. It can also be argued that it does not properly address the scientific progress that has been made regarding the knowledge around the transmissibility of HIV. However, the decision in the case R v Murphy, specifically the change in the standards for realistic possibility of transmission, represents a step in the right direction in the area of HIV non-disclosure. This blog seeks to argue in favour of the application of this standard to the common law by addressing the relevant legislation, outlining the Murphy case, and then arguing for the application of the standard based on the continued adverse effects if it were not to be implemented.
Legislation and Case Law
Before getting into the Murphy decision, it is important to first mention the relevant legislation and case law regarding the issue of HIV non-disclosure. The relevant legislation in this case has to do with the crime of aggravated sexual assault. This is outlined in sections 265 and 273 of the Criminal Code. Section 265 states that “ a person commits an assault when without the consent of another person, he applies force intentionally to that other person directly or indirectly,” and that “no consent is obtained where the complainant submits or does not resist by reason of fraud.”Section 273 states the “every one commits aggravated sexual assault who, in committing sexual assault, wounds, maims, disfigures, or endangers the life of the complainant.” In the case of R v Cuerrier, the Supreme Court of Canada ruled that people who did not disclose that are HIV positive and have unprotected sexual intercourse can be charged under these sections of the Criminal Code. The court decided that not disclosing the fact that one is HIV-positive before engaging in sexual activity can constitute fraud which vitiates consent, which combined with the fact that acquiring HIV constitutes a significant risk of bodily harm means that non-disclosure can be charged with aggravated sexual assault. This decision was later modified in R v Mabior, where the Supreme Court of Canada ruled that there had to be a realistic possibility of transmission in order constitute fraud vitiating consent. They ruled that a low viral load combined with condom use negated the realistic possibility of transmission, and therefore someone who wore a condom and had a low viral load could not be convicted of aggravated sexual assault due to there being no risk of significant bodily harm.With those two cases in mind the case law essentially holds that in order to not be convicted of aggravated assault for not disclosing ones positive HIV status, there has to be a combination of condom usage and a low viral load, otherwise there is an absence of consent and a significant risk of bodily harm.
R v Murphy
R v Murphy, decided in the Ontario Court of Appeal, considered the admissibility of new evidence for the case of Jennifer Murphy, a women convicted of aggravated sexual assault in 2013. Murphy was convicted of aggravated sexual assault after engaging in vaginal intercourse with the complainant without a condom and without disclosing that she was HIV-positive. However, Murphy had been on antiretroviral treatment since 2001, and was found to have an undetectable viral load both before and after sexual contact with the complainant. The decision by the trial judge to convict Murphy was based on guidance provided by the Supreme Court of Canada in Mabior. No condom was used, therefore the judge found that there was a possibility of transmission and convicted Murphy for aggravated assault. However, based on the evolution of the science around HIV transmission since Mabior and Murphy’s trial, Murphy argued that there was no realistic possibility of transmission, due to the fact that she was on antiretroviral treatment and had an undetectable viral load. This argument was presented to the court in the form of new evidence, specifically an affidavit Dr. Phillippe El- Helou, in which he stated that there was effectively zero risk that Murphy could have transmitted HIV through one act of condomless sex. The court allowed this evidence to be admitted, and Murphy was acquitted. This decision set a new standard for the realistic possibility of transmission. However, the court refused to apply it to facts outside of the case, therefore updating the common law, opting to only apply the standard to the specific facts of Murphy’s case.
The Case for a New Standard
The decision to acquit Murphy in this case is a positive development for the criminal law around HIV non-disclosure. As mentioned previously, the science around HIV and the transmission of it has come a long way since Mabior in 2012. There have been numerous studies that have found essentially no chance of transmission during a single act of intercourse, especially when the HIV-positive partner has a low viral load or an undetectable viral load, even without the use of a condom. This seems to pose a problem for the ruling in Mabior, however this is not the case. In fact, future scientific development was accounted for in paragraph 104 of Mabior, where the court stated, “the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment.” Therefore the court in Murphy was correct in its decision to allow the appeal based on this new scientific evidence. This decision is also a good outcome, as future decisions that apply the standard in Murphy will lead to not only less convictions for people who clearly have no realistic possibility of transmission, but also less convictions for HIV non-disclosure in general. This is good for many reasons. Firstly, convictions for HIV non-disclosure have the potential to discourage people from testing themselves to see if they have HIV. This is a concern raised in Cuerrier, as the court recognized that criminalizing non-disclosure could lead to the “undesirable” outcome of people choosing not to get tested based on the fear of them being HIV positive, and thus having to choose between not having unprotected sex or engaging in criminal activity. This would go against what was the underlying goal of both the rulings in Mabior and Cuerrier, which was to not only protect people from HIV, but to also to protect the general public health. Ultimately, convicting people for cases like these can lead to less people being aware of their HIV status, which in turn can lead to more transmission of HIV, which is why the raising of the standard in Murphyis a step in the right direction in the fight against HIV. There is also the fact that the criminalization of HIV non-disclosure disproportionally affects some of the most marginalized people in Canada, including racial and sexual minorities. According to the HIV Legal Network, a large proportion of people charged for HIV non-disclosure were either gay or black men, and for women, the majority of those charged were Indigenous. Especially considering the ongoing conversations around reconciliation in Canada, it is important that laws that disproportionately affect marginalized people are looked at with scrutiny. There should be an effort to minimize the harmful effects of the criminal justice system on Indigenous peoples specifically. For a law that disproportionally affects these minorities, the new standard set by Murphycan lead to fewer people being convicted of breaking it, which would lower the overall negative effects on those marginalized groups, which most people should agree is a positive outcome. In summary, the Murphy ruling, if applied more generally to the future cases of HIV non-disclosure could result in many positive effects. The lowering of the chances of aggravated sexual assault convictions due to the new standard set for the possibility of transmission can reduce the apprehension around testing for those who think they might be HIV positive. This will lead to not only more people seeking treatment, but also it will reduce the chances of people unknowingly spreading HIV. This is good for not only people with HIV, but also the public health in general. The ruling can also decrease the disproportionate effect this law has on marginalized groups, specifically Indigenous women, which considering the goals of reconciliation is something Canada should strive for.
While I understand the reasons why the court in Murphy did not want to apply the new standard for the realistic possibility of transmission to facts outside of this specific case, for the reasons listed above I think it would have been beneficial to do so. And so, considering the Murphy case, what I hope happens, and what I believe should happen is one of two things. Either the government should, through reforms to the Criminal Code, specify non-disclosure as its own crime with a similar standard set out in Murphy, and perhaps lesser punishments, or that courts who hear cases like that of the Murphy case apply the same standard for the realistic possibility of transmission in order to officially enter it into the case law. Murphy is a step in the right direction, but there is certainly still more to do.
 Criminal Code, RSC 1985, c C-46, s 265.  Ibid, s 273.  R v Cuerrier,  2 SCR 371 at paras 75, 147, 162 DLR (4th) 513 [Cuerrier].  Ibid, at para 75.  R v Mabior, 2012 SCC 47 at para 104 [Mabior].  Ibid.  R v Murphy, 2022 ONCA 615 at paras 1, 5 [Murphy].  Ibid, at para 2.  Ibid.  Ibid, at para 5.  Ibid, at para 19.  Ibid, at para 41.  Ibid, at para 31  Francoise Barre-Sinoussi et al, “Expert consensus statement on the science of HIV in the context of criminal law” (2018) at 2, online (pdf): Wiley Online Library <https://onlinelibrary.wiley.com/doi/pdf/10.1002/jia2.25161>.  Mabior, supra note 5 at para 104.  Cuerrier, supra note 3 at para 74.  Canadian HIV/AIDS Legal Network, “The Criminalization of HIV Non-disclosure in Canada: Current Status and the Need for Change” (April 2019), online (pdf): HIV Legal Network < https://www.hivlegalnetwork.ca/site/the-criminalization-of-hiv-non-disclosure-in-canada-report/?lang=en>.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.