Criminal Law and HIV Non-Disclosure: A response to the October 2012 Supreme Court of Canada Ruling

November 2012

On October 5, 2012, the Supreme Court of Canada released important decisions in two cases of HIV non-disclosure. Rather than clarifying its earlier ruling (R. v. Cuerrier, 1998) that people living with HIV/AIDS had a legal duty to disclose their HIV status before having sex posing a “significant risk” of serious bodily harm (i.e. HIV transmission), this new decision now requires that people must disclose their HIV-positive status before having sexual relations that pose a “realistic possibility” of HIV transmission. But the Court also found that almost any risk is “realistic,” no matter how small. Additional confusion surrounds the fact that the cases before the Supreme Court only dealt with HIV non-disclosure in the context of vaginal sex; it is not clear how the test of a “realistic possibility of transmission” will be applied to other sexual acts such as oral or anal sex.

ACT continues to believe that criminal law is an ineffective and inappropriate tool with which to address HIV non-disclosure. HIV/AIDS is an individual and public health issue first and foremost, and should be addressed as such. Criminal charges do little or nothing to stem the spread of HIV, but do divert resources and attention away from the policies and initiatives that have been proven to reduce HIV transmission and improve the lives of people living with HIV/AIDS.

Given the most recent Supreme Court of Canada ruling, and the increased number of criminal charges and prosecutions related to HIV non-disclosure in Canada, ACT supports the establishment of prosecutorial guidelines for HIV non-disclosure. Such guidelines should be informed by current scientific evidence and take into account the objectives of HIV prevention, treatment, care and support – and should ensure that criminal charges are only laid when warranted. Decisions by Crown Counsel under prosecutorial guidelines would influence the charges that police lay, whether a case goes to court and how a case is presented in court.


Background:
In its 1998 decision in R. v. Cuerrier, the Court decided that people living with HIV/AIDS had a legal duty to disclose their HIV status before having sex posing a “significant risk” of serious bodily harm (i.e., HIV transmission). The Court further suggested that the use of condoms may reduce the risks of HIV transmission such that there may be no duty to disclose; however, they did not definitively decide on this issue. Since that time, a majority of the decisions of lower courts that considered this issue — including the Court of Appeal of Manitoba in R. v. Mabior — ruled that condom-use alone was enough to preclude criminal liability. Yet, in too many other cases, scientific evidence on HIV risks of transmission was disregarded. Some people were charged and/or convicted in cases where the risk of transmission was exceedingly low (e.g., oral sex). The “significant risk” test adopted in Cuerrier resulted in a great deal of uncertainty and unfairness for people living with HIV/AIDS.

In R. v. Mabior and R. v. D.C., the Supreme Court of Canada had the opportunity to clarify the law in accordance with the current science of HIV transmission and treatment. Unfortunately, it did not. The Supreme Court of Canada ruled on October 5, 2012 that people living with HIV/AIDS must disclose their status before having sexual relations that pose a “realistic possibility” of HIV transmission. But in the Court’s view, a “realistic possibility” encompasses almost any risk, no matter how small.

Based on the Court’s decisions, people living with HIV/AIDS now have a legal duty to disclose their status before:

▪ having vaginal sex without a condom (regardless of their viral load); or
▪ having vaginal sex with anything higher than a “low” viral load (even if they use a condom).

The court defined a “low viral load” as having less than 1,500 copies of the virus per millilitre of blood. The Court did not consider either anal sex or oral sex in its ruling. Anal sex poses higher risks of transmission than vaginal sex, so the duty to disclose is at least as strict as for vaginal sex. In other words, you have a duty to disclose before having unprotected anal sex or when your viral load is higher than “low.” According to the Canadian HIV/AIDS Legal Network, it might be the case that, as with vaginal sex, if you use a condom and your viral load is low you do not have a legal duty to disclose. But at this time, we can’t say for certain if satisfying both these requirements (condom use plus a low viral load) will be enough to avoid convictions in the case of anal sex.1

Oral sex (without a condom) is usually considered very low risk (i.e., an estimated risk ranging from 0 to 0.04%). We don’t know at this point whether courts will find that there is a duty to disclose before oral sex without a condom. We also do not know whether it makes a legal difference if you are receiving or performing oral sex, or whether the amount of semen or vaginal fluid that the person performing oral sex is exposed to can make a legal difference.2

ACT continues to believe that criminal law is an ineffective and inappropriate tool with which to address HIV non-disclosure. HIV/AIDS is an individual and public health issue first and foremost, and should be addressed as such. With this recent ruling, people with inadequate access to care, treatment and support may not be able to establish a low viral load. If they do not or cannot disclose their status — due to fear of violence or other negative consequences — they may face criminal prosecution, imprisonment and sexual offender registration.

Criminal charges do little or nothing to stem the spread of HIV, but do divert resources and attention away from the policies and initiatives that have been proven to reduce HIV transmission and improve the lives of people living with HIV/AIDS (e.g., education, testing, support services, access to safer sex and harm reduction materials, and programs to address stigma, discrimination, poverty and violence).

Most people living with HIV/AIDS practice safe sex and safe drug use, and/or disclose their HIV-positive status to their sexual and/or drug-using partners. It is everyone’s responsibility, whether they know their HIV status or not, to ensure that HIV and other sexually transmitted infections are not transmitted. Criminalization disproportionately places the responsibility for preventing HIV transmission on people living with HIV/AIDS.

The use of the criminal law as a response to non-disclosure fails to acknowledge the significance of factors such as awareness about HIV, homophobia, sexism, racism, HIV stigma and discrimination, and other social determinants of health that impact on an individual’s ability to take HIV prevention precautions and/or to disclose their status.

Given the recent Supreme Court of Canada ruling, and the increased number of criminal charges and prosecutions related to HIV non-disclosure in Canada, ACT supports the establishment of evidence‐informed prosecutorial guidelines.3

These guidelines should be informed by current scientific evidence and take into account the objectives of HIV prevention, treatment, care and support – and should ensure that criminal charges are only laid when warranted. The provincial Attorney General issues prosecutorial guidelines to assist Crown Counsel in making decisions and to promote high standards and consistency in how criminal cases are handled. Prosecutorial guidelines for case of HIV non-disclosure would provide the overall philosophy, direction and priorities of the Attorney General and set out detailed practice guidance for Crown Counsel. Decisions by Crown Counsel under prosecutorial guidelines would influence the charges that police lay, whether a case goes to court, and how a case is presented in court.

1. HIV non-disclosure and criminal law: Implications of recent Supreme Court of Canada decisions for people living with HIV. Canadian HIV AIDS Legal Network: http://www.aidslaw.ca/publications/interfaces/downloadFile.php?ref=2085
2. Ibid
3. Ontario Working Group on Criminal Law and HIV Exposure: http://ontarioaidsnetwork.on.ca/clhe