Policy on the Use of Criminal Sanctions as a Response to the Transmission of HIV.

Introduction

The AIDS Committee of Toronto is a community-based organization which provides information, education, and support services to those who are infected and affected by HIV. ACT also undertakes advocacy on behalf of persons infected with HIV and with regard to public policy issues involving HIV/AIDS.

A key aspect of ACT's activities are efforts directed toward preventing the transmission of HIV. As such, ACT opposes public policy initiatives which interfere with strategies designed to prevent or control the transmission of HIV. It is in this context that ACT has developed a policy regarding the use of criminal sanctions as a response to the transmission of HIV. This is not an abstract issue. At the time of writing, there have been at least eight prosecutions in Canada involving the transmission of HIV. See Appendix "A" attached. Five of these prosecutions have been successful, with sentences ranging from one year to eleven years. (In one case the accused died and no verdict was rendered.)
Further, Justice Minister Allan Rock has publicly stated that he is considering an amendment to the Criminal Code to create an HIV-specific offence. Toronto Star, January 9, 1995, "AIDS Tests Ruled Out for Suspected Rapists." For the reasons described below, ACT opposes such moves as well as the application of current Criminal Code offenses to the transmission of HIV.


A. Criminalization of the Transmission of HIV is incongruent with the Aims of Criminal Law.

The criminal law is traditionally viewed as serving certain purposes, such as rehabilitation, retribution, or deterrence. Of these goals, the ability of criminal sanctions to deter certain conduct is viewed as one of the most valuable. Deterrence is commonly viewed as being "specific", taking place when an offender is deterred from recommitting an offence through incarceration, or deterrence may be "general", when potential offenders are deterred from offending through the example of others.

With regard to HIV, it may be argued that transmission of the virus may be prevented by incarcerating an individual who has in the past or may in the future engage in conduct likely to transmit the virus.

However, ACT believes that in the formulation of public policy regarding HIV, it is necessary to keep the routes of transmission in mind. HIV is not transmitted through casual contact and in most cases involves the participation of two individuals, such as in penetrative sexual intercourse or the sharing of needles. Such conduct is subject to individual control, and a change in behaviour of one individual is sufficient to eliminate the risk of transmission. ACT recognizes that there are limits to individual control over situations where transmission might occur. However, ACT believes that the most effective method of deterring risky behaviour is through public education as well as specific health and social services (such as anonymous voluntary testing and counselling services) which support risk-reducing behaviour changes. ACT believes that such a response is more effective because it attempts to prevent transmission before it occurs, whereas the criminal process is reactionary and engages only after harm occurs.

ACT recognizes that there may be isolated, extreme situations where an individual's conduct may require specific, direct intervention. In such situations, ACT believes that there are powers already existing under provincial health legislation that, when used appropriately, are more suitable in range and scope of power than criminal sanctions.. See Section E below

It may also be argued that criminal sanctions deter undesirable conduct by sending a message to potential offenders about the consequences of their actions. ACT believes that such an argument is not persuasive when applied to the transmission of HIV. Criminal sanctions are coercive, externally imposed measures which seem to have little effectiveness in the domain of human sexual activity. Historically, prohibitions in this area have been a part of legal codes and yet traditionally-prohibited behaviour such as same-sex relations, prostitution, and public sex have continued regardless. Rather than hinder prohibited conduct, criminal sanctions impede public health education and treatment initiatives by stigmatizing people and driving certain conduct underground.
Arguments may also be made that the deliberate transmission of HIV deserves punishment, serving the retributive principle of criminal law.

As an organization committed to protecting the rights of, and preventing discrimination against people with HIV, ACT does not support retribution as a legitimate argument for criminalizing the transmission of HIV. ACT believes that arguments based on a desire for punishment provoke unwarranted but substantial anxiety and can unveil deep-seated prejudices against people known or believed to have HIV.

Another argument for criminalizing transmission of HIV is that offender may somehow be rehabilitated. However, conduct aimed at infecting others with HIV indicates, above all, a need for counselling, which is unlikely to occur or be effective in the penal environment. It is ACT's belief that no rehabilitative purpose is likely to be served by penalizing or incarcerating people with HIV. Under provincial health legislation, an individual can be ordered to undergo mandatory counselling and treatment, and may be incarcerated for violating such an order.


B. Problematic Aspects of Applying Criminal Sanctions to the Transmission of HIV

ACT believes that substantial problems will arise in the application of criminal sanctions to the transmission of HIV. One potential problem arises in establishing a link between an incidence of transmission and one particular accused. How will it be established that the complainant was infected by the accused and not through some other source? The likelihood of having corroborating witnesses is remote since the most common routes of HIV transmission --- needle sharing and penetrative sexual intercourse --- do not usually occur in public areas. Given the difficulty of establishing such a "causal link", there is a potential that HIV will be used as the basis for criminal action against accused individuals whose only incriminating characteristics are their HIV status and a past relationship with the complainant.

Moreover, what standards will apply to assess the degree of responsibility of an accused? Discussion concerning the creation of an HIV-specific offence has focussed on situations where one has "knowingly" transmitted the virus. see note 2 above. However, it is ACT's experience that HIV is very rarely transmitted through pre-meditated, intentional conduct. Rather an individual's "unwillingness to protect themselves and their partner may be due to age, attitudes, pre- existing genetic, pathological, psychological or substance use problems; or it may be due to their inability to acknowledge their HIV status and the potential risk they pose to others. Reducing HIV Transmission by Individuals who are Unwilling or Unable to take Appropriate Precautions. Ontario AIDS Advisory Committee, STD/AIDS Unit, Public Health Branch. 1991 Therefore, what does "knowingly" mean in the context of transmitting HIV?

All forms of intimate sexual behaviour involve some degree of risk. That risk is assumed by individuals depending on their degree of comfort and their perception of the emotional bond of trust with their partner. If a couple agrees to assume a high degree of risk in their behaviour and infection occurs, is this a situation where the virus has "knowingly" been transmitted? What about individuals who are not well-informed about the methods of transmission --- by what standards will their behaviour be judged?

There is also a danger of selective prosecution by law enforcement authorities. From the beginning, HIV has been incorrectly associated with high-risk groups rather than high risk activities. Further, the social response to AIDS has been permeated by a guilt/innocence dichotomy which blames groups of people, usually gay men and sex workers, for spreading the virus. In a House of Commons debate in October 1994, for example, Liberal MP Rosanne Skoke stated: "There are those innocent victims that are dying from AIDS and then there are those homosexualists who are promoting and advancing the homosexual movement and that are spreading AIDS."

Based on these factors, there is a danger that law enforcement authorities will unjustifiably focus on groups which have traditionally been associated with HIV in deciding whether to apply criminal sanctions.

Furthermore, since HIV has been determined to be a disability under anti-discrimination clauses in some Human Rights Codes in Canada, then isolating it for criminal sanctions may also be contrary to the equality guarantee in the Canadian Charter of Rights and Freedoms.


C. An Historical Precedent: the Decriminalization of Transmitting Venereal Disease.

Until 1985, it was a criminal offence to knowingly transmit venereal disease to another person. The specific provision prohibited a conviction on the evidence of one witness without corroboration.

The offence was repealed in 1985 on the recommendation of two federally-commissioned reports which found the offence to be ineffective and counterproductive. Special Committee on Pornography and Prostitution. Pornography and Prostitution in Canada. (Ottawa: Minister of Supply and Services Canada, 1985). (Chair:P.Fraser). Committee on Sexual Offenses Against Children and Youth. Sexual Offenses Against Children. (Ottawa: Minister of Supply and Services, 1984). (Chair:R.F: Badgley) The reports stated that the offence drove "underground" those who engaged in the activity and made it more difficult to obtain accurate reports of the disease. Both reports stated that a much more effective way of dealing with transmission of sexually transmitted diseases was through increased education.

For similar reasons, ACT opposes the use of criminal sanctions as a response to the transmission of HIV. It is ACT's position that provincial health legislation provides the appropriate arena for society's response to the transmission of HIV --- even in extreme cases where such conduct is or seems to be deliberate. Such legislation is broad enough to accommodate a variety of responses depending on the nature of the conduct involved and the particular situation of the offender.


D. Criminalization of HIV Transmission and Public Health Strategy

ACT believes that the Criminalization of HIV transmission is inconsistent with public health strategies to the extent that it will actually subvert initiatives to control transmission of the virus.

A primary objective of public health initiatives regarding HIV/AIDS is to prevent transmission of HIV. This objective may also be used to justify the Criminalization of HIV transmission. However, it must be remembered that HIV is transmitted entirely through identifiable behaviour and specific actions --- such as penetrative sexual intercourse and intravenous injection --- which are subject to individual control. Since sharing needles and the sexual transmission of HIV, for example, involves the behaviour of two individuals, a change in the behaviour of either the HIV-infected or uninfected individual will be sufficient to prevent HIV transmission. ACT does acknowledge that power imbalances can exist in relationships that limit individual control. There are also limits on individual capacity to absorb and act upon safer sex messages. For example, some groups in society do not have the same access to safer sex education (such as prisoners and people with disabilities). ACT still believes however, that criminal sanctions will not be effective in protecting people from HIV infection. For this reason, ACT has emphasized the following principles in its initiatives aimed at reducing the transmission of HIV:

    • information and education is crucial to HIV prevention, since transmission of HIV can be prevented through informed and responsible behaviour,
    • uninfected persons must bear in mind their own responsibility not to put themselves at risk of infection with HIV,
    • specific health and social services are most effective and are necessary to support risk reducing behaviour changes,
    • the avoidance of stigmatization against persons known or suspected to be HIV-infected is essential for HIV prevention and control, and the recognition that failure to prevent such stigmatization will endanger public health.

These principles have been recognized in governmental strategies for preventing the transmission of HIV. See "HIV and AIDS: Canada's Blueprint", (1990) Ministry of Health and Welfare, and "Building on Our Strengths; Focussing on our Efforts: Ontario's HIV/AIDS Plan to the Year 2000", Ontario Ministry of Health It is significant that neither Health Canada nor the Ontario Ministry of Health has ever advocated the use of criminal sanctions to combat the spread of HIV. On the contrary, both levels of government have emphasized education, counselling, and support services in efforts to curb the spread of the virus.

To the extent that criminal sanctions involve isolation and stigmatization, ACT believes that they will frustrate public health initiatives aimed at controlling HIV. For example, testing for HIV is desirable from a public health perspective because it is the starting point for treatment and health promotion purposes. However, if knowledge of a positive HIV diagnosis entails greater exposure to criminal liability, it will discourage testing.

It is ACT's experience that stigmatization encourages people to avoid detection and to lose contact with health and social services. Those needing information, education, counselling or other support are "driven underground" --- with severe personal and public consequences. The result would jeopardize educational, counselling and treatment initiatives, thereby increasing the difficulty of preventing HIV infection. Far from reducing the spread of HIV, therefore, the use of criminal sanctions actually increases that risk.


E. An Alternative to Criminal Sanction - Provincial Health Legislation

It is ACT's position that provincial health authorities already possess sufficient powers to deal with extreme cases of substandard behaviour which may increase the risk of transmission of HIV. Under Ontario's Health Protection and Promotion Act, for example, a medical officer may obtain court orders requiring a person to take or refrain from a hazardous course of action, or to undergo mandatory treatment and counselling. The Act also authorizes the use of police officers to detain a person who disobeys a court order obtained by a medical officer. Detention periods may be renewed. ACT believes that such powers are broad enough to deal with extreme situations involving grossly substandard conduct which may endanger other individuals. They are also varied enough to be tailored to the particular circumstances of the offender and the impugned conduct.

Although ACT believes that Public Health is the preferred option to deal with extreme situations, we must also raise serious cautions about the breadth of Public Health powers. Powers need to be focussed upon truly extreme situations and coercion should not be the common response to all difficult situations where individuals are unable or even unwilling to take necessary precautions to reduce HIV transmission. From our experience in Ontario, currently there is no consistency in action across the province. Furthermore, powers such as "indefinite" detention should not, in fact, be without limits and indefinite. Any powers must be regulated to a degree that ensures due process for the individual. Public Health powers themselves need to be brought under a set of guidelines that ensure a consistent, fair and flexible response when required. Public Health should not become simply a system of arbitrary punishment.

Public Health also needs boundaries because as an institution it is also influenced by systemic and societal prejudice. For example, there have been situations that have reached the press where public health has used particular zeal in pursuing prostitutes believed to be or known to be infected with HIV. These situations only fuel prejudice against a group already facing discrimination and feeds into the myth that HIV belongs to "others", to the marginalized, the different and not to society as a whole.

These weaknesses need to be addressed and Public Health approaches need to be developed to effectively respond to difficult situations using the principle of "least intrusive, most effective" (Gilmore/Somerville).

Despite these cautions, ACT believes that the powers under the HPPA are preferable to criminal sanctions because they arise out of legislation specifically designed to protect and promote public health. Even the most extreme of these powers --- detention --- is intended to ensure access to medical treatment, rather than to deprive someone of liberty as a punishment for misconduct. Further, usage of the HPPA protects confidentiality to a greater degree and avoids the stigmatization of people with HIV that is involved in the criminal process.