The Law and HIV Non-Disclosure - Kelci Legg

In theory, the criminalization of HIV non-disclosure should benefit society. It should lead to safer sex with lower STI cases, lower stigma around being open with one’s status, and Canadians getting tested more regularly. Instead, it may do the opposite: contributing to fear, stigma, and lower testing. Canada ranks high in the world for HIV criminalization in the fifth spot for number of prosecutions related to HIV non-disclosure,[1] and in Canada, HIV-positive people face life imprisonment and become designated as a sex offender if they have otherwise consensual sex without disclosing their status if there is a “realistic possibility” of transmission of spreading HIV.[2] One woman, Jennifer Murphy, was convicted in 2013 of sexual assault for HIV non-disclosure, and earlier this year took her fight to the Ontario Court of Appeal almost a decade after being sentenced to three years in prison and being added to the national sex offender registry.[3]

Legislation

The Criminal Code does not have a direct section on HIV non-disclosure, but when prosecuting for it, usually the courts use assault and sexual assault, sometimes the “aggravated” version of these charges.[4] The basis for assault in the Code, that applies in this case, is applying “force intentionally without the consent of the other,”[5] and to be recognized as aggravated sexual assault, the complainant’s life must be endangered,[6] which, if convicted, this carries a maximum sentence of life imprisonment.[7]

Jurisprudence

A monumental case for this issue was R v Cuerrier, in which a man who was HIV-positive did not disclose his status before having unprotected sex with two women, neither of whom contracted the virus but said they would not have consented had they known his status.[8] The Court ruled that when someone knowingly fails to disclose his positive HIV-status, he may be found guilty of violating s. 265 of the Code.[9] One of the main points Justice Cory, for the majority, argued in Cuerrier was “[p]ersons knowing that they are HIV‑positive who engage in sexual intercourse without advising their partner of the disease may be found to fulfil the traditional requirements for fraud namely dishonesty and deprivation. That fraud may vitiate a partner’s consent to engage in sexual intercourse.” The element of deprivation is “satisfied by exposure to the risk of harm.”[10] The Court, throughout the ruling, was sure to emphasize that though the two complainants consented, failure to disclose HIV-status by the accused was fraudulent, and thus the consent was null.[11]

The Court refined the ruling of Cuerrier in the more recent case of R v Mabior. The circumstances in Mabior were similar to Cuerrier, where an HIV-positive man had unprotected intercourse with multiple women (the complainants) while not disclosing his HIV-positive status and was convicted. Mabior appealed, because his viral count – the amount of the virus per millilitre of blood – was low, and this meant, at least he thought, that there was little risk of bodily harm.[12]In this case the Court placed extra emphasis on the element of significant risk of bodily harm in order to convict.[13]Significant risk of bodily harm entails a “realistic possibility of transmission of HIV,”[14] and that “realistic possibility of transmission of HIV is negated if (i) the accused’s viral load at the time of sexual relations was low, and (ii) condom protection was used.”[15] Though Mabior’s viral count was low, he didn’t wear a condom, and the Court upheld his conviction.

The Issue

Jennifer Murphy’s viral load was undetectable, which is lower than even “low” viral load, and her risk of transmission was next to no risk at all.[16] She chose to fight her conviction to hopefully end the criminalization of people like her, who are undetectable. She talked candidly about her experience and how it has affected her life, describing it as “nothing short of devastation.”[17] She developed PTSD, and was traumatized by her designation as a sex offender for life, which can affect everything from housing to one’s career, and can even prevent you from being around your own children.[18] Even if taken off the sex registry list, she can never take away her trauma, and it doesn’t seem fair to be subjected to this, essentially for just having an illness (in her case, a very managed one).

Essential to proving all criminal actions is, of course, actus reus and mens rea, and one can argue how wrong it is or not, but it’s easily conceivable how the actus reus or the prohibited act[19] can be found here. Someone purposefully omitting their sexual health and choosing to not use protection is a wrongful act, no matter the risk element, as it is disregarding one’s sexual partner’s trust and consent. However, the mens rea, or fault element, can be harder to point to in each case. There are several ways to conceptualize the mens rea, as there are many ways to have a fault element, as Parliament has used words like “purposely,” or “recklessly,”[20] and the Supreme Court has pointed to “foresight to cause bodily harm” as well.[21] Let’s envision someone, like Jennifer Murphy, who takes her antiretroviral drugs consistently, and is tested at the doctor’s regularly, time and time again showing the drugs work to produce a low antiviral count, and the doctor tells her that there is virtually no chance to spread the virus. Does that person, who is admittedly not no risk but rather very low risk, having sex with someone unprotected have much of a guilty mind? It isn’t necessarily her intention to infect others, and if her doctor gave her the go-ahead, it isn’t necessarily reckless, nor does the person have foresight to see how this would cause bodily harm.

While this law is sensible in some respects, in practice it may do more harm than good for many Canadians, like Murphy, that aren’t harming anyone due to practically nonexistent risk of transmission yet are treated by law the same as rapists and child predators. A lie about one’s status is wrong, may even be harmful, but it doesn’t inherently require the law’s intervention. No one would contest that cheating on your spouse is wrong and harmful, but you cannot be legally penalized for that.

This issue is furthered by incongruencies in the legal system, and this means it’s hard for Canadians to be certain what the laws may be. A few years ago, in 2018, there was an order from the Attorney General of Canada for all federal lawyers to stop prosecuting those who are undetectable.[22] This seems promising; however, it only applies in the territories, but B.C., Alberta, Ontario, and Quebec have adopted similar policies.[23] It is a step in the right direction, but, until the remaining provinces begin to adopt these policies, there will be inconsistencies across the country. After all, the criminal law is, in theory, supposed be the same across Canada. Though the House of Commons did put out a report in 2019 of ending prosecution aside from actual transmission, there has been little movement since then of pushing to change the legislature.[24] This is disappointing for an important issue like this, and the inconsistency and hesitancy can only make Canadians more uncertain and fearful about this issue. How many more people must end up prosecuted and put in prison for essentially just having a virus (as most criminalization cases do not result in transmission[25])? This is not to say that all acts subject to criminal sanctions must inherently do harm (for example, “attempted” anything), but it does seem questionable that most convictions haven’t resulted in transmission. Further, people are forgoing being tested because they think if they don’t know their status, they cannot be prosecuted (which isn’t necessarily true).[26] What exactly is this law preventing, and how is it benefitting Canadians?

Interestingly, when addressing the issue, Justice Minister Lametti used language that was primarily aimed towards LGBT+ Canadians,[27] which are disproportionately affected by HIV.[28] However, this virus is not exclusive to the LGBT community, (for one, the cases discussed above were between heterosexual partners) and anyone can be infected by HIV. The Justice Minister’s remarks are questionable in this regard, and only contribute to the skewed narrative of HIV as an exclusively gay problem, and the stigma that first came from the AIDS crisis in the 1980s.

It is of note that this past August, Jennifer Murphy was successful in overturning her conviction and being removed from the sex offender registry.[29] The decision was only from the Ontario Court of Appeal, so it does not have binding precedent across Canada. Other provinces may look to this decision for guidance, but there is no guarantee this will have much effect outside of Ontario, which already has stopped prosecution with low viral count. One success is impactful, of course, but this is still an issue.

Do I personally think that we should outright get rid of HIV non-disclosure laws? No, I don’t think that would do good for greater Canadian society. There is nuance here–people shouldn’t be able to just go infect unwilling participants with a life-altering disease, but there needs to be something in place to prevent it from reaching too far. Those who are ill but realistically will never infect another person should not have their lives ruined for failing to disclose their status. Further, just because a law should exist doesn’t mean that anyone in any infraction of the law should be prosecuted, as this leads to undue fear and unjust punishment. A solution might be to get Parliament to draft up a specific provision to the Code that is separate from sexual assault, or at least specifically defined, and can be evenly applied across the provinces. The law does not exist in a vacuum, and lawmakers need to consider the real-world effects outlawing something will have, and the law needs to have limits to prevent it from being too broad

[1] Katelyn Wilson, “'I do not infect anyone,' Fighting for change to end HIV non-disclosure prosecution” (2 February 2022), online: CTV News < https://barrie.ctvnews.ca/i-do-not-infect-anyone-fighting-for-change-to-end-hiv-non-disclosure-prosecution-1.5765502>. [2] Ibid. [3] Ibid. [4] Guest Author, “AN OVERVIEW OF THE CRIMINALIZATION OF HIV NON-DISCLOSURE” (15 March 2019), online: Canadian Civil Liberties Association < https://ccla.org/get-informed/talk-rights/overview-criminalization-hiv-non-disclosure/> [5] Criminal Code, RSC 1985, c. C-46, s 265(1). [6] Ibid, s 273(1). [7] Ibid, s 273(2)(b). [8] R v Cuerrier, [1998] 2 SCR 371 at paras 81-82, 162 DLR (4th) 513 [Cuerrier]. [9] Ibid, at para 147. [10] Ibid, at para 46. [11] Ibid, at para 127. [12] R v Mabior, 2012 SCC 47 [Mabior]. [13] Ibid, at para 104. [14] Ibid, at para 93. [15] Ibid, at para 94. [16] Wilson, supra note 1. [17] Ibid. [18] Ibid. [19] Kent Roach, Criminal Law, 8th ed (Toronto: Irwin Law, 2022) at 97. [20] Ibid, at 192. [21] Ibid, at 194. [22] Wilson, supra note 1. [23] Ibid. [24] Ibid. [25] Ibid. [26] Ibid. [27] Ibid. [28] Civil Liberties, supra note 4. [29] Katelyn Wilson, “Former Barrie, Ont. woman's conviction for HIV non-disclosure overturned” (30 August 2022), online: CTV News<https://barrie.ctvnews.ca/former-barrie-ont-woman-s-conviction-for-hiv-non-disclosure-overturned-1.6049096>

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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.