Australia: Analysis of the limitations of scientific evidence to prove timing and direction of alleged HIV transmission in three criminal trials

This article by Paul Kidd in the March 2016 issue of HIV Australia examines the use of HIV phylogenetic analysis in three Australian criminal trials. It argues that courts in Australia appear to accept forensic evidence uncritically. As the forensic methodology used in phylogenetic analysis is inherently limited, it argues there is risk of miscarriage of justice where this type of evidence forms a substantial part of the prosecution case.

Read the full article at: https://www.afao.org.au/library/hiv-australia/volume-14/vol-14-no-1/phylogenetic-analysis-as-expert-evidence-in-hiv-transmission-prosecutions

US: One of six complainants in Texas Philippe Padieu case releases book, local news interviews her and Padieu

Seven Years Later: Perpetrator and Victim in HIV Trial Speak Out

Diane Reeve’s private life was laid bare in a very public trial several years ago, and with nothing left to hide she is releasing a book to share what she’s learned and to inspire others.

In “Standing Strong: The Inspiring Story of an Unlikely Sisterhood and the Court Case That Made History,” Reeve talks about her relationship with Philippe Padieu and the trial that resulted in his conviction for having unprotected sex with multiple women without telling them he was infected with HIV.

Reeve dated Padieu for several years and thought their relationship was exclusive. She later led efforts to track down and coordinate women he’d infected with HIV and helped police and prosecutors build their case. She formed friendships with some of the other women.

“We kept a predator from continuing to victimize women,” Reeve said. “That’s the part of it that I feel most accomplished about, because he’s not out there anymore hurting anybody and I could not have lived with myself if I had allowed that to continue.”

Padieu is serving his 45-year prison sentence at a facility in Tennessee Colony, Texas, where he said he is part of a faith-based ministry and mostly keeps to himself.

He still believes his trial was unfair.

“I had no expert witness at my trial, I had no real attorney, I had a state appointed attorney,” Padieu said in a recent interview.

“My trial attorney died and I am filing habeus corpus on the second chair attorney,” Padieu said. “They pretty much sold me out – they didn’t investigate, they were useless, they just went with the prosecution version.”

Padieu is 60 years old, and is not eligible for parole until 2030.

Reeve said she did not write the book just to re-hash the trial, but also to raise awareness about the growing number of women being infected with HIV, and to inspire others who may find themselves in seemingly impossible situations.

“For a long time, I couldn’t touch it because it was too raw,” she said. “But I began to see the importance of making sure that the story got told for other people to help give them courage.”

Reeve launched the website Date Stronger to help women learn to protect themselves both physically and emotionally while dating, and “Standing Strong” is set for release in April.

See also http://www.nbcdfw.com/news/local/Sex-As-a-Weapon-The-Movie.html

Switzerland: Two (alleged) HIV transmission convictions this month despite many positive changes in law

On January 1st 2016, Switzerland’s Epidemics Act 2013 finally came into effect, which

repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).

Despite this, and a 2013 Swiss Federal Supreme Court ruling that HIV transmission may no longer be automatically considered a serious assault under article 122 of the Swiss Criminal Code, and could be prosecuted as a common assault under under article 123, there have been two HIV transmission prosecutions using article 122 in the past two weeks.

Alleged transmission via oral sex with disputed disclosure: Aarau District Court, Aargau

On February 1st, a Liberian man, 48, was convicted of (allegedly) transmitting HIV to his ex partner despite both parties testifying to consistent condom usage during vaginal sex. The complainant, a woman in her 50s, remained with the man four years after her diagnosis, and only made the complaint after he left her and married another woman, with whom he now has three children.

According to a news report in the Aargauer Zeitung, the court appeared to believe that she acquired HIV from the man via oral sex, which both sides testified was the only time they had sex without condoms.  Whilst he testified he had disclosed early in the relationship, she claims he only disclosed following her diagnosis.

He was found guilty under article 122, and was given a year suspended sentence. He was also ordered to pay compensation to the complainant of CHF 30,000 (approx. €27,000).

Alleged transmission via vaginal sex with a very low viral load, without disclosure: Geneva Criminal Court, Geneva.

On February 10th, a Turkish man, 50, was convicted of (allegedly) passing HIV to his ex partner despite having a low viral load.

According to a report on 20 Minutes and further information from another journalist in the courtroom, the court heard that the man was diagnosed with an almost undetectable viral load: his doctor told him he would not need treatment for many years, and that his risk of transmission was 1-in-a-1000.

His doctor told him to inform his partner, but he testified that he did not because he was afraid she would leave him and he did not believe he could infect her.

Although the Swiss Federal Court has previously accepted that a person with an undetectable viral load could not expose someone to HIV,  in this case the man was not on treatment (a key criterion of the Swiss Statement) and it was also alleged that he had infected the complainant.

He was found guilty under article 122, and given two years’ suspended sentence. He was also ordered to pay compensation to the complainant, a woman in her forties, of CHF 40,000 (approx. €36,000).

A second charge under, originally article 231, was not retained because the judge found that the element of malicious intent required since the change of law in January, was absent.

Discussion

Despite significant law reform in Switzerland, potentially unjust prosecutions continue to occur.  However, the penalties are less severe than previously found in a 2009 study of all Swiss prosecutions.

Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 (c. €53,000) as compensation to the ‘victims’.

However, in neither case was there any mention of the court relying on expert witnesses or scientific evidence – notably the use of phylogenetic analysis to help ascertain if the transmissions were linked or unlinked – which would have been appropriate given the unusual nature of both alleged transmissions.

Switzerland has one of the world’s highest percentages of diagnosed people on treatment with an undetectable viral load, close to the UNAIDS 90-90-90 target of 73% of all people living with HIV virally suppressed by 2020.

This highlights that even at this level of national HIV treatment success, a significant minority of people with HIV will be diagnosed but not uninfectious, especially disenfranchised individuals such as migrants, and therefore vulnerable to prosecution.

It is likely both men’s risk of prosecution was already higher than usual because their partners were (probably) Swiss-born older women who did not consider themselves at risk of HIV.

Both cases therefore highlight that physicians and other health care workers need to ensure that all of their patients fully understand the risks of HIV transmission when not on treatment – even with a low viral load and/or during oral sex – and potential prosecution when disclosure does not happen, or cannot be proven.

Australia: Academic article explores the prevention impact of treatment on criminal 'exposure' laws and prosecutions

Evidence that treating people with HIV early in infection prevents transmission to sexual partners has reframed HIV prevention paradigms. The resulting emphasis on HIV testing as part of prevention strategies has rekindled the debate as to whether laws that criminalise HIV transmission are counterproductive to the human rights-based public health response. It also raises normative questions about what constitutes ‘safe(r) sex’ if a person with HIV has undetectable viral load, which has significant implications for sexual practice and health promotion. This paper discusses a recent high-profile Australian case where HIV transmission or exposure has been prosecuted, and considers how the interpretation of law in these instances impacts on HIV prevention paradigms. In addition, we consider the implications of an evolving medical understanding of HIV transmission, and particularly the ability to determine infectiousness through viral load tests, for laws that relate to HIV exposure (as distinct from transmission) offences. We conclude that defensible laws must relate to appreciable risk. Given the evidence that the transmissibility of HIV is reduced to negligible level where viral load is suppressed, this needs to be recognised in the framing, implementation and enforcement of the law. In addition, normative concepts of ‘safe(r) sex’ need to be expanded to include sex that is ‘protected’ by means of the positive person being virally suppressed. In jurisdictions where use of a condom has previously mitigated the duty of the person with HIV to disclose to a partner, this might logically also apply to sex that is ‘protected’ by undetectable viral load.

Germany: Aachen Court re-evaluates key ‘mens rea’ requirement in German law, rules HIV transmission without disclosure is negligent injury, not intentional harm

Last week, for the first time a German court ruled that HIV transmission without prior disclosure was negligent injury, rather than intentional harm.

The District Court of Aachen sentenced a 43 year-old man to one year and nine months on probation for having condomless sex with his former female partner without disclosing his HIV-positive status. The woman is now also HIV-positive. The maximum sentence for negligent bodily injury is three years in prison and a fine.

With this judgment the Court has created legal history – the first ruling since 1988 to change the way HIV non-disclosure cases are considered by German courts. Until now, the Federal Court, as well as lower courts, had always considered that HIV non-disclosure prior to sex without a condom meant that the defendant “considered acceptable” that their partner would acquire HIV.  This concept, of dolus eventualis, is much closer to the common law definition of ‘recklessness’ than to malicious intent.

Leading HIV and human rights lawyer Jacob Hösl, who attended the hearing in an advisory capacity, told Deutsche AIDS-Hilfe: “The Federal Court has always said that the examination of pre-meditation requires a case-specific overall examination, which can vary greatly depending on the individual circumstances. The lower courts, however, have always assumed intent by default. For the first time this court sees it differently. ”

Hösl praised the fact that the court studied intensively the medical facts and personal circumstances of the accused. “The man did not want his partner infected – for him she was the love of his life,” he noted.

The presiding judge, Hans-Günter Goergen, began his oral verdict, stating: “We have learned a lot about HIV in this trial.” According to press reports, he noted that the defendant had concealed his HIV-positive status because he was afraid his partner would leave him, but that he had no desire for her to become HIV-positive.

The judge also accepted that the defendant had tried to protect his partner (by using condoms most of the time, and withdrawing before ejaculating), but failed due to the circumstances (she started taking contraceptive pills and desired condomless sex) and because of his fear of losing his partner. He noted that the defendant’s former wife had divorced him in 2007 after he had tested HIV-positive. Accordingly, the judge saw no evidence that the defendant acted with intent.

The Court also found the defendant not guilty with respect to three other charges relating to HIV non-disclosure and potential HIV exposure involving two women when the defendant’s viral load was undetectable.

A medical expert told the Court that during the relationship with the complainant that is now HIV-positive, the risk of transmission was low, as he had a low (but not undetectable) viral load. Dr. Heribert Knechten, a witness for the defence, who was also the defendant’s doctor, noted that in 2014, before commencing treatment, his patient’s viral load was stable at 85,000 copies per milliliter, which translated into the risk of HIV transmission during vaginal intercourse to be between 0.05 to 0.15 percent. He also testified that after the defendant’s viral load reached undetectable at the end of 2014 that he was very unlikely to be infectious.

Manuel Izdebski, Deutsche AIDS-Hilfe board member said in a press release:

“This verdict is a step of great value: the first time that a court recognizes that you cannot automatically assume intent in HIV transmission cases; it is almost always due to fear – as it was in this case – that people do not disclose. Accordingly, this must be taken into account. Criminal law is not an appropriate way to measure this. The decision of the District Court in Aachen is a pioneering step towards a legal system that no longer penalises HIV transmission as a criminal offence.”

The written judgement is expected soon. However, today, the prosecution has appealed the ruling, so this judgement may not be final.

US: Court of Appeals for the Armed Forces acknowledges per-act sexual HIV exposure risk, limiting future military prosecutions for HIV non-disclosure as aggravated assault

The US Court of Appeals for the Armed Forces (CAAF) has reversed the 2011 aggravated assault conviction (upheld by the US Air Force Court of Criminal Appeals in 2013) of Airman David Gutierrez for potentially exposing a number of sex partners to HIV at ‘swinger parties’, severly limiting the use of this law for future prosecutions in the US armed forces.

Gutierrez’s court-martial on the aggravated assault charge required prosecutors to prove several elements, including that the sexual activity – the “assault” – was deemed likely to produce death or grievous bodily harm.

The five judge CAAF panel’s unanimous ruling, published on Monday (and available in full below) examined the per-act risk of oral and vaginal sex with and without a condom (although there appears to be no discussion of viral load as a key modifier of these risks).

“The question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” wrote Chief Judge James E. Baker. “The critical question . . . is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”

In overturning the conviction, the court cited testimony from the prosecution’s medical expert, Dr. Donna Sweet, that in oral sex with or without a condom, the risk of HIV transmission is “almost zero” and HIV transmission through vaginal sex with a condom is only “remotely possible.”

She estimated that an HIV-positive man engaging in condomless vaginal sex with an HIV-negative woman would result in a 1-in-500 risk of the woman acquiring HIV, but deemed this to be at the “high end” of probabilities.

CAAF concluded that the prosecution had failed to prove that any of the acts were likely to transmit HIV.

“In law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence,” Baker wrote.

Although the decision – overturning a 25-year precedent that had allowed military personnel to be convicted of aggravated assault based solely on a positive HIV antibody test – was welcomed by advocates, another part of the ruling potentially opens the door to the use of a lesser charge – assault consummated by a battery – for future allegations of HIV non-disclosure.

An article in The Tribune quotes Catherine Hanssens, executive director of the Center for HIV Law and Policy, noting that at least part of the decision was “an important sign of progress” that should be “read and taken seriously” by civilian as well as military courts. But…

In a move called “curious” by Hanssens and “astonishing” by military law blogger Zachary D. Spilman, author of Blog-CAAFlog, the court cited only a Canadian court decision for support of the potentially far-reaching conclusion that lack of knowledge equals lack of true consent.

In fact, the Court cited the notorious Supreme Court of Canada’s 1998 Cuerrier decision (which led to HIV non-disclosure in Canada problematically being framed as a serious sexual assault).

This, notes Spilman, could be extremely problematic in future military cases. His opinion analysis concludes:

I think this an incredibly odd ending to a very interesting opinion. CAAF reaches to foreign law to invalidate the consent of Appellant’s sexual partners, while simultaneously rejecting the notion that it should distort the law to “fit a round peg of conduct into a square hole of a punitive statutory provision.” Ultimately, the court seems to have merely traded one distortion of the law for another.

It remains to be seen what impact this will have on future US civilian or military cases.

In December 2013, the US Senate passed the National Defense Authorization Act (fiscal year 2014) which aimed to reform the military’s HIV-related policies, including prosecutions for HIV non-disclosure, exposure and transmission. Although work is taking place behind the scenes, it’s unclear when this will have an impact on pending or future prosecutions or policy.

In the meantime, Gutierrez is currently serving eight years in military prison. His case has  been sent back to the Judge Advocate General of the Air Force for sentencing review.

The next HIV-related case likely to come before CAAF will be that of Lt Col. Ken Pinkela whose recent change.org campaign to review his unjust court-martial has over 73,000 signatures.

Since he was (falsely) accused of condomless anal intercourse when his viral load was extremely low – neither of which were discussed in this ruling – it remains unclear how this ruling will affect his case.

Read the entire CAAF decision below.

US v Gutierrez opinion and judgment (Feb 2015)

Quebec develops expert consensus on viral load and HIV transmission risk | CATIE – Canada's source for HIV and hepatitis C information

Quebec develops expert consensus on viral load and HIV transmission risk In the past few years, a large body of evidence has emerged supporting the use of antiretroviral therapy (ART) as an HIV prevention tool.

US: Iowa Supreme Court rejects ‘theoretical’ HIV risk, reverses ‘HIV exposure’ conviction

Last Friday, June 13, the Iowa Supreme Court set aside the ‘HIV exposure’ conviction of Nick Rhoades, who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man comprising anal sex with a condom and oral sex without whilst his viral load was undetectable.

In reversing the conviction, the Court recognised that sexual HIV exposure risks should not be based on outdated beliefs or theoretical risks and must be specific to the individual acts and situations that are before the Court.

Read the entire written judgement from the Iowa Court of Appeal

The Court’s ruling sends the case back to Black Hawk County District Court, where prosecutors could have another chance to claim Mr Rhoades actions leading up to his arrest violated the law. However, it is difficult to imagine that prosecutors would be able to establish that there is a factual basis to sustain a conviction in light of the Iowa Supreme Court’s decision, and much more likely that a District Court judge will allow his initial guilty plea – which the Court accepted was due to being poorly advised by his initial lawyer – to be withdrawn.

[Update October 1st: Assistant Black Hawk County Attorney Linda Fangman has filed a motion to dismiss the case against Mr Rhoades, meaning his six year ordeal is finally over]

The ruling came two weeks after Iowa’s Governor repealed the draconian HIV-specific law under which Mr Rhoades was convicted, replacing it with an infectious disease law that, amongst other significant improvements, provides a defence of taking “practical means to prevent transmission”, defined as “substantial good faith compliance with a treatment regimen prescribed by the person’s health care provider” and use of “a prophylactic device”.

[See this just published news story in ProPublica and Buzzfeed for more on Mr Rhoades’s case, the new Iowa law, and what else is happening in terms of US HIV criminalisation reform.]

HIV risks must be shown to be more than theoretical

The Iowa Court of Appeal’s decision was celebrated in press releases from Lambda Legal and the Center for HIV Law and Policy and in an editorial by the Des Moines Register. As well as personal victory for Nick (who last week had his GPS monitoring device removed by Senator Matt McCoy, during a moving ceremony at the HIV is not a crime conference in Grinnell, Iowa, following the new law’s retrospective removal of all people convicted of ‘HIV exposure’ in Iowa from the sex offender registry) it may also lead to judges and prosecutors revisiting outdated assumptions about HIV risk in future HIV-related prosecutions in other US states and jurisdictions.

“The importance of the Iowa Supreme Court’s decision cannot be overstated,” said Christopher Clark, Counsel for Lambda Legal. “We look forward to making these arguments again and to taking this Court’s clear guidance on the interpretation and application of these types of laws to the many jurisdictions in which HIV criminalization remains a pressing issue.”

In 2010, Mr Rhoades filed a petition in the District Court for post-conviction relief arguing that his attorney did not inform him of the specifics of the law, allowing him to plead guilty to charges that were not supported by the actual events and facts. After his petition was denied Rhoades appealed to the state Supreme Court.

Lambda Legal joined forces with Rhoades’ appellate attorneys, Joseph C. Glazebrook and Dan L. Johnston with Glazebrook & Moe, LLP based in Des Moines, Iowa, and The Center for HIV Law and Policy took the lead with the HIV Law Project in drafting a friend-of-the-court brief on the science of HIV treatment and transmission. The brief supporting Rhoades’ appeal was filed on behalf of The Center for HIV Law and Policy, the National Alliance of State and Territorial AIDS Directors (NASTAD), and the HIV Law Project.

In its ruling, the Iowa Supreme Court held that the criminal law required that a defendant “intentionally expose” another person to HIV. The court noted that the fact that HIV primarily is transmitted through sexual intercourse and contact with blood, semen or vaginal fluid is not a legally acceptable substitute for the facts necessary to say that a particular individual acted with the intent to expose someone to HIV in a manner that actually posed a real risk of HIV transmission.

Watch Lambda Legal’s Christopher Clark make his oral arguments before the Court of Appeal

Justice Wiggins, writing for the majority opinion, highlighted the specifics of the HIV risks involved in this case in three different places:

Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual’s viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person. (page 3)

Today we are unable to take judicial notice that an infected individual can transmit HIV when an infected person engages in protected anal sex with another person or unprotected oral sex, regardless of the infected person’s viral load. (page 17)

At the time of the plea, Rhoades’s viral count was nondetectable, and there is a question of whether it was medically true a person with a nondetectable viral load could transmit HIV through contact with the person’s blood, semen or vaginal fluid or whether transmission was merely theoretical. The judicial notice we took in previous cases is subject to reasonable dispute here; thus, it is improper for us to similarly take judicial notice in this case. With the advancements in medicine regarding HIV between 2003 and 2008, we are unable to take judicial notice of the fact that HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus to fill in the gaps to find a factual basis for Rhoades’s guilty plea. Thus, there was not a sufficient factual basis for the district court to accept the plea. Therefore, trial counsel was ineffective for allowing the district court to accept the plea without a factual basis. (page 18)

In addition, the Court found that prosecutors must establish something more than that HIV transmission is theoretically plausible. The court rejected prior courts’ treatment of “possible” as meaning any likelihood of occurrence, no matter how remote. “Could” or “possible” in this context should mean, as the Iowa Supreme Court said, “the reality of a thing occurring, rather than a theoretical chance.” It also said that prosecutions must rely on expert testimony about actual transmission likelihood in these cases, and defendants don’t have to show that transmission would never occur in order to successfully defend against charges of HIV exposure.

First, we recognize this statute requires expert medical testimony on the likelihood of transmission of HIV. Experts are not required to testify in absolutes when it comes to causation….Second, and more importantly, we would not want to deprive a person of his or her liberty on the basis the defendant’s actions caused something that can only theoretically occur. (page 8 )

Of note, bearing in mind that only 25 percent of the more than 1 million individuals in the US who are living with HIV are achieving viral suppression, the amicus (friend of the court) brief was careful not rely too much on treatment’s impact on viral load, and rather emphasised the already low per act risk of transmission via various forms of sexual contact, regardless of whether the person was on treatment.

Rhoades v. State of Iowa, Amicus Brief, Supreme Court of Iowa

HIV Criminalization: A Physician's Perspective

This essay is an excerpt from the LGBT/HIV criminal justice report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV. His name was Paul. I slid into the chair next to him in my examination room to console him as he cried.

Canada: Nova Scotia court acquits young man with undetectable viral load of aggravated sexual assault for HIV non-disclosure despite no condom use

by Cecile Kazatchkine, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

On November 8 2013, the Provincial Court of Nova Scotia in Canada released a very encouraging decision in a case of HIV non-disclosure. A young man with an undetectable viral load who had not disclosed his HIV positive status to his sexual partner before engaging in unprotected sex was acquitted of aggravated sexual assault.

The couple had engaged in vaginal sex on three occasions. Twice, they used a condom. On the third occasion, however, it was found that they had unprotected vaginal sex without ejaculation. At no time, did the young man disclose his HIV status. In fact, the judge found that he had actively concealed that he was HIV positive to his sexual partner who had inquired about rumours that he had AIDS.

In 2012, the Supreme Court of Canada ruled in R. v. Mabior and R. v. D.C., that a person living with HIV has a legal duty to disclose his or her HIV positive status to a sexual partner where there is a “realistic possibility of HIV transmission.” The Supreme Court was clear that where a condom is used and the HIV positive partner has a low viral load, there is no “realistic possibility of HIV transmission” and thus, no duty to disclose under the criminal law. These decisions were understood to mean that a person living with HIV must disclose his or her HIV positive status before having vaginal sex unless he or she uses a condom and has a low viral load.

None the less, the Provincial Court of Nova Scotia acquitted the young man, despite the factual finding that he had engaged in unprotected sex. The Court described two different routes to its conclusion.

The first route relates to the analysis of the consent given by the complainant. In Canada, one element that the prosecution must prove in a non-disclosure prosecution is that the complainant would not have consented to sex if he or she had known about his or her partner HIV positive status. At trial, the complainant testified that had she known that the accused was HIV positive she would not have had unprotected sex with him. But she also said that had she known that his risk of transmitting HIV was virtually non-existent, she would have consented.

As described by Justice Campbell, that the risk of transmission was infinitesimally small was the “true state of affairs” based on the evidence before the Court. Indeed, the unchallenged medical expert called by the defence testified that he did not believe that there was any risk of transmission in this case. He further concluded that “in an act of sexual intercourse someone with an undetectable viral load such as [the accused] had a one in one million chance of transmitting the virus. That might be as high as one in 500 000 (…)” and described the risk as “very close to zero.”

According to the Court, the complainant’s statement that had she known the extremely low degree of risk she would have consented to unprotected sex with the accused is part of the context that needs to be taken into account when determining whether the consent was vitiated or not. As summarised by Justice Campbell:

[t]o ignore [the complainant]’s acknowledgement that with full knowledge of the facts she would have had unprotected sex with [the accused] would amount to a strange privileging of half-truth, deception and misconception over truth. The truth is that she would have had unprotected sex with him had she known the facts. My conclusion is that her consent was not vitiated by the deception.

The second route relates to the realistic possibility of transmission. The Court found that that element had not been met either. This conclusion is at odds with the predominant interpretation of Mabior and D.C. — that unprotected sex, even with an undetectable viral load, would necessarily be considered as representing a “realistic possibility of transmission.”

In a recent decision, the Ontario Court of Appeal had ruled that there was no need for the Crown to bring medical evidence of “a realistic possibility of transmission” in each case. The Court of Appeal ruled that proving unprotected sex would be sufficient to establish “a realistic possibility of transmission” and that evidence of the accused’s exact viral load at the time and the associated degree of risk of HIV transmission would be irrelevant in such circumstances. (There was no medical evidence on the risks of transmission before the Ontario Court of Appeal or evidence of the accused’s viral load.)

The Provincial Court of Nova Scotia, however, did not accept that the Supreme Court of Canada or the Ontario Court of Appeal decisions had definitely closed the doors to different findings with respect to whether “a realistic possibility of HIV transmission” existed based on the medical evidence before the judge in a particular case.  Concerned about the potential for discrimination against people living with HIV in the absence of any risk, the Provincial Court of Nova Scotia stated that the Supreme Court decisions “can and should be interpreted in a way that in not incompatible with an approach that respects both the scientific evidence in each case and the fact finding role of trial courts.”  According to the Court, “[t]he Supreme Court did not intend (…) to impose evidentiary findings on trial courts that are incompatible with the evidence actually before those courts.”

In the case at bar, the medical evidence called by the defence was clear: the risk of transmission was approaching zero. The Court was careful to specify the risk determination was a finding of fact (versus a finding of law), specific to the case, and ruled that the legal conclusion arising from that fact was that, even in the absence of a condom, the legal test of a “realistic possibility of transmission” was not met.

This decision is an encouraging development in the law on HIV non-disclosure in Canada. While trial court decisions have limited precedential authority in the Canadian legal system, this decision remains important as it demonstrates that Mabior and D.C — which have been strongly criticised for being at odds with the science and previous case law — need not prevent science from prevailing over prejudice. Medical evidence can and should play a critical role in cases of HIV non-disclosure, exposure and transmission, something both defence lawyers and medical experts in HIV will need to be very mindful of.

Mainstream media news reports can be found here and here.  The full judgement is below.

R. v. J.T.C. 2013 NSPC 105 (November 8 2013)