Criminal Law and HIV Non-Disclosure

May 2012

ACT believes 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.

However, given the increased number of criminal charges and prosecutions related to HIV non-disclosure in Canada, ACT supports the establishment of evidence‐informed prosecutorial guidelines. 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 increasing number of criminal charges that are being laid each year in Canada, and in particular in Ontario, in cases of non-disclosure of HIV-positive status have raised alarm bells amongst people living with HIV (PHAs) as well as organizations working with and advocating for the rights of PHAs and others affected by HIV/AIDS. There is little, if any, evidence to suggest that criminal prosecutions for non-disclosure of HIV-positive status will offer any significant benefits in terms of HIV prevention. On the other hand, there is strong reason to believe that these criminal prosecutions could have negative effects, including hindering HIV testing and access to services, spreading misinformation about HIV, increasing stigma and discrimination associated with HIV, and invasions of privacy.

The Ontario Working Group on Criminal Law and HIV Exposure (CLHE) has come together to oppose the expansive use of the criminal law with respect to issues of HIV exposure. CLHE supports a comprehensive evaluation of how Canada’s criminal law is being applied within Ontario with respect to HIV-related issues. This group, of which ACT is a member, advocates for sound policy responses to HIV prevention and transmission based on the best available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights.

In 1998 the Supreme Court of Canada (SCC) ruled (in the case of R. v. Cuerrier) that a person must disclose his or her HIV‐positive status before engaging in sexual activity that poses a significant risk of serious bodily harm’ (i.e., a significant risk of HIV transmission) to their partner.1 The SCC did not define what would constitute ‘significant risk’ in its decision or provide criteria for assessing risk.

As of 2011, more than 130 people with HIV have faced non‐disclosure of HIV status criminal charges. More than 65 have been convicted and of these 55 were sentenced to prison terms. Courts have convicted people with HIV of some of the most severe offences in the Criminal Code even when no HIV transmission occurs. People are often charged with aggravated sexual assault, which carries a maximum penalty of life imprisonment and registration as a sex offender. Lower court decisions have been inconsistent in how the “significant risk” threshold is applied; for example, some people charged for HIV non‐disclosure have been acquitted because they used a condom while some others have been convicted.

Key Points
HIV/AIDS is an individual and public health issue, and a human rights issue. 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 PHAs (e.g., education, testing, and support services, access to safer sex and harm reduction materials, and programs to address stigma, discrimination, poverty and violence).

Most PHAs practice safer sex and drug using practices, 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 PHAs.

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.

Relying on the criminal law to prevent HIV transmission is based on faulty assumptions about the efficacy of this approach and does not address complex factors associated with unsafe HIV behaviours. The criminalization of non-disclosure may ultimately prove counterproductive in efforts to contain the spread of HIV. We know anecdotally that it has impacted some people’s willingness to access testing and has driven people “underground,” reducing their willingness to access broader health care services.

Criminal charges for non-disclosure of HIV-positive status increase stigmatizing attitudes in the general public by portraying PHAs as “potential criminals” and may foster prejudice and discrimination against PHAs. In addition, given the biases and lack of awareness about HIV/AIDS among some police, prosecutors, judges and correctional institutions, the criminal justice system is not the appropriate venue for addressing HIV exposure.

The criminalization of non-disclosure of HIV-positive status undermines the human rights of PHAs, including their sexual and reproductive health rights and rights to privacy, equality and security of the person. These violations are unjustified.

Interventions aimed at preventing the spread of HIV should be health and human rights based, and based on a principle of “least intrusive, most effective”.

Using the criminal law to address issues of HIV exposure may have disproportionate impacts on specific groups. To date, and to our knowledge, these include racialized men and newcomers to Canada, aboriginal women, prisoners, and people in contact with law enforcement. Moreover, obligations to disclose HIV status could result in violence against some PHAs, especially sex workers and women in abusive relationships.

Some PHAs may be unable to disclose their HIV-positive status for reasons of mental illness, significant cognitive or psychological impairment, or a reasonable apprehension of harm. Criminal prosecutions do not respond to this reality or prevent further exposures in these circumstances.

We advocate for sound national, provincial and local policy responses to issues relating to HIV prevention and transmission. We therefore support a review of Canada’s present criminal law and its application with respect to HIV exposure. This policy review must take into account the best available evidence on HIV/AIDS, the primary objectives of HIV prevention, care, treatment and support, and respect for the human rights of all. This policy review should be directed towards changing the problematic situation described above.

The Ontario Working Group on Criminal Law and HIV Exposure, together with community leaders, lawyers, public health professionals and clinical experts in Canada are urging Attorneys‐General to establish evidence‐informed prosecutorial guidelines. The guidelines should be informed by current scientific evidence and take into account the objectives of HIV prevention, treatment, care and support – and would ensure charges are only laid when warranted.