Judging the epidemic has been prepared as a resource to help judges, magistrates, arbitrators and other judicial officers throughout the world adjudicate cases involving HIV-related issues. This handbook may also be used by judicial trainers and ministries of justice to deliver educational programmes to judges and magistrates on legal issues related to HIV and human rights. It may also be relevant to advocates, lawyers and other legal practitioners, and civil society organisations (including people living with HIV) that seek to gain specific understanding of HIV-related legal issues and the potential role of the courts in advancing human rights in the context of the epidemic. Based on international legal and human rights standards, the handbook contains examples of decided cases from different jurisdictions, good-practice advice and judicial rulings on HIV-related issues.
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.
A court in Barrie, Ontario has found a woman, ‘JM’ not guilty of aggravated sexual assault for not disclosing her HIV status before her male partner performed oral sex on her.
The Barrie Advance reports that
Justice Gregory Mulligan… ruled [‘JM’] was not guilty of the same charge when a man performed oral sex on her in a public park, stating the chances of a man contracting the disease in that manner were so “miniscule” she wasn’t required to inform him.
“This is considered a low risk. There are no documented cases of HIV being transmitted in this way,” Mulligan said. “It is so low that it does not give rise to a risk of bodily harm.”
In his ruling, Mulligan relied on evidence from Dr. Irving Salit of the Toronto HIV Clinic who said the chances of a man contracting the disease by performing oral sex on a woman with a low viral load were the same “as having a piano fall on you while walking down the street”.
Dr. Salit also testified that it was nearly as unlikely for a man to get the disease if he had unprotected intercourse with a woman in [‘JM’]’s symptom-free condition. As well, clinical trials show using a condom to protect against HIV is of little benefit when a person has a low viral load.
It was the oral sex incident that led to [‘JM’] being arrested and having police put out a public notice looking for other men who may have had unprotected sex with her.
A group of HIV organizations, including the Canadian HIV/AIDS Legal Network and the International Community of Women with HIV/AIDS, issued a press release (available in full below) welcoming the verdict.
“She should never have had to fight the oral sex charge,” said Jessica Whitbread, Global Chair of the International Community of Women with HIV/AIDS. “We deplore the Crown’s insistence on prosecuting this charge despite what the science tells us about the risk of transmission in cases of oral sex.”
“Today’s decision sends an important message to Crown prosecutors who have tried to expand the scope of the criminal law on HIV non-disclosure: criminal prosecutions for oral sex are not warranted,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network.
However, ‘JM’ was nevertheless convicted of one count of aggravated sexual assault for not disclosing her HIV status before having unprotected vaginal sex, although at the time her viral load was undetectable (meaning the risk of transmission was close to zero).
As the press release chillingly reminds us, “she now faces potential jail time on charges similar to those faced by violent rapists.” Her sentencing is next week.
According to the Barrie Advance
Defence lawyer Angela McLeod expects “a battle” during the hearing because she has been told the Crown’s office is seeking a “multiple-year” penitentiary term, which could mean up to five years. “That’s outrageous,” McLeod said outside the court. “The men who going out trolling for prostitutes and not wearing condoms should be the ones going to jail.”
McLeod said she was somewhat perplexed by a finding of guilt because Justice Mulligan dismissed the oral sex charge based on scientific evidence but gave little weight to the same science for the intercourse charge. “I don’t understand it because he relied on the science for one charge but not the other,” McLeod said.
‘JM’ is only one of a handful of people in Canada who have been charged for HIV non-disclosure more than once. According to this 2012 article in The Toronto Star, in 2005, she was convicted of failing to disclose her HIV status to two soldiers from CFB Borden before they engaged in unprotected intercourse. She was sentenced to one year of house arrest. In 2007, she was charged again with aggravated sexual assault, accused of having unprotected sex with a man in Barrie, Ontario and not disclosing, although the charge was ultimately withdrawn by the Crown.
The case highlights the urgent need for prosecutorial guidelines in Canada. More than 1,000 supporters of the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) have already called on the Ministry of the Attorney General of Ontario to consult with the HIV community as well as experts in HIV medicine and science when they put together their long-awaited prosecutorial guidelines later this year.
“We continue to press the Ministry to fulfill its promise and develop prosecutorial guidelines in accordance with science, international recommendations and the expertise of people living with HIV and their allies to put an end to unjust and harmful prosecutions against people living with HIV,” concludes Elliott.
The meeting also looked at specific actions that can be taken by Judges, to create a more supportive environment for people with HIV and key populations that are at-risk. UNAIDS also launched the first-ever Judicial Handbook on HIV, Human Rights and the Law at the meeting.
The Compendium of Judgments, HIV, Human Rights and the Law, is a collation of progressive jurisprudence on HIV-related matters that highlights how the law has been used to protect individual rights. The compendium presents a user-friendly compilation of judgments from different national and regional jurisdictions.
by Dingiswayo Madise: One of the challenges that the subordinate courts face in criminal matters is the issue involving criminal law and HIV and Aids. Many times, courts are faced with multifaceted and thought provoking cases involving victims of sexual assault, namely rape, defilement and sodomy.
The other area where there is much debate is where there is no offence committed and the sexual intercourse was consensual. It has been argued that a partner who knowingly infects another with HIV must be prosecuted where there is evidence that the partner knew that he or she had HIV. However, it is difficult to prove that one knew that he or she had the disease unless it can be shown that there was prior testing. Mere sickness or loss of weight cannot constitute knowledge on the part of the sick partner unless and until they go for HIV testing. The million $ question is: Should we criminalise HIV transmission? Can we not find other ways of reducing the spread of the disease?
Changes are in the pipeline for the sentencing of sex offenders. But what principles govern how long a criminal is jailed for? To take one category of offence, assaults involving grievous bodily harm, there are nine steps that must be followed. The first two are the most important. Step one weighs up how serious the offence is by measuring the harm done and the culpability of the offender. Greater harm is indicated by “serious” injury to the victim, a sustained or repeated attack and the personal circumstances of the victim. But the definition of serious injury is again fundamentally contentious. Culpability is governed by another 15 factors, including premeditation, use of a weapon, or having taken on the leading role in a gang. The 19 factors, in total, put the offence into one of three categories of seriousness.
Step two sets out the range of any jail sentence. Depending on the category of seriousness, a sentence will range from 9-16 years, 5-9 years, or for the least harm and culpability 3-5. Steps three to nine look at mitigating factors, reduction for guilty pleas and a range of other technical issues. The 27 pages of assault guidelines on their own have the potential to baffle even a hardy layman. “I have the greatest sympathy with the public,” says Sir Louis Blom-Cooper, a QC and legal academic. “The system for sentencing is immensely complicated even for judges.”
Read the entire ruling R. v. Ratt  SKPC 154, S.J. No. 590
A Canadian judge in the province of Saskatchewan has ruled that spitting in the face of a police officer is a simple assault that does not result in a risk of serious diseases such as HIV, hepatitis C or herpes.
“When we in the justice system perpetuate this myth without question, without evidence of the risk, without any fact-based analysis, we are feeding into this irrational anxiety,” noted Judge Felicia Daunt during sentencing of a 36 year-old woman following her guilty plea for impaired driving and assaulting a police officer (by spitting into the right into the eye of a female arresting officer).
According to a CBC report
The Crown argued that there was a risk, although minimal, that the officer could have become infected with HIV, hepatitis C or herpes. She underwent considerable anxiety, visited a doctor and had to wait two weeks before she found out she was going to be OK.
The Crown pointed to previous cases where people who spat at police officers received jail sentences. The prosecutor pushed for the maximum sentence of six months for Ratt.
Instead, earlier this week La Ronge provincial court Judge Felicia Daunt sentenced her to time already served — five days — and six months probation.
“I want to be clear that I am in no way trivializing the well-being of police officers or minimizing the very real risks they face on a daily basis,” Daunt wrote in her nine-page decision. “They have an extremely stressful job.” However, it’s an “urban myth” that police get serious injuries after being spat at and the intense anxiety that officers and their families feel about saliva is not justified, she said.
Canada and the United States have far outpaced most other countries in attempting to prosecute HIV-positive people for spitting, notably for spitting at arresting officers. The most notorious case comes from the United States (the 2008 Willie Campbell case in Texas) but between 1993 and 2006, there were six arrests or prosecutions of people living with HIV for spitting in Canada, representing 10% of all criminal potential or perceived ‘HIV exposure’ cases during that period.
Laboratory studies have found that saliva may contain HIV, and transmission via saliva is therefore biologically plausible. However, there is absolutely no epidemiological evidence to suggest that spitting on someone could expose them to enough HIV for infection to result. Levels of HIV in saliva are not high enough to allow transmission, even if the saliva comes into contact with a mucous membrane such as that of the eye. Spitting into someone’s mouth would create the same risk as kissing – zero. The CDC recently updated its website to highlight HIV-related risks in the context of criminal prosecutions, and notes that spitting poses a ‘neglible’ risk of HIV exposure.
In this particular case, however, there was no evidence that the accused had HIV or any other communicable disease. Instead, the Crown wanted to use her as an example and have the judge sentence her to six months in prison to deter others from spitting on cops during their arrest.
Instead, Judge Daunt noted the following:
“Those who get arrested on a regular basis know the police are terrified of getting spit on. That’s why they do it. They use that fear against the officers. A detainee can threaten a police officer, he can try to hit him, and not bother that officer one bit. So if a detainee can put the fear of death into an officer simply by spitting on him or her, he is going to do it. In other words, these spitting incidents are increasing because of the fear. If we want to deter suspects from spitting on police officers, we need to educate these officers about the real risks involved, and not perpetuate their anxiety by repeating urban myth.”
Judge Duant’s reliance on science and not stigma is very much appreciated. Let us hope that Canada’s Supreme Court is similarly enlightened when it delivers its judgments in the Mabior and DC appeals this Friday, October 5th. The decision will be available as of 9:45 am 9.45 EST (15.45 CET) on the Supreme Court’s website at http://scc.lexum.org/en/index.html.
An 18 year-old pregnant woman from Eastern Bohemia in the Czech Republic, coinfected with both HIV and Hepatitis C, was sentenced to 2 1/2 years in prison last week for not disclosing that she was HIV-positive before having unprotected sex with her 19 year-old boyfriend. The judge, Miroslav Veselský, classified the ‘crime’ of HIV non-disclosure as ‘attempted grievous bodily harm’.
This is only the fourth-ever prosecution for HIV non-disclosure prior to unprotected sex in the Czech Republic of which we are aware – and the first-ever prosecution of a woman. A young pregnant woman at that. A young pregnant woman who spent her entire life in foster homes and juvenile institutions according to the two news reports of the case here (English translation here) and here (English translation here).
She was diagnosed with HIV and hepatitis C at the age of 15 and a year later was treated for dependence on methamphetamine and heroin. After turning 18 she was moved to a social care home (where, according to Czech law, people with HIV must disclose their status), and the social care staff monitored her private life.
When staff learned that she was going out with a person named in the news reports as John N., they told her to disclose her health status to him or face the consequences.
“She told me that she has hepatitis C. The HIV – she said nothing, probably wanted to be with me and she was afraid of losing me.”
It transpires that John was not a complainant in the case, but simply a witness. It was the care home staff who notified the police. In fact, John stated that although almost all of their sexual encounters were unprotected, he acquired neither HIV nor hepatitis C. Another partner, who went out with the young woman after her relationship with John ended also testified that he knew that the the young woman was HIV-positive and wore a condom.
The young woman was actually tried in absentia, at her own request, because she is eight months pregnant. Justice Veselský told the court he had never come across a case like this in 30 years on the bench and although the usual sentence for attempted grievous bodily harm is five to twelve years, he listened to appeals from both the defending and prosecuting counsel and decided to be “pragmatic” and “lenient” with the 2 1/2 year sentence.
The young woman has already served four months in custody, and can apply for parole in 15 months. This means, of course, that she will give birth in prison. In early February she will be taken to a detention hospital in Prague to prepare for childbirth.
World leading scientists and medical practitioners joined legal experts and civil society representatives to discuss the scientific, medical, legal and human rights aspects of the criminalization of HIV non-disclosure, exposure and transmission. The meeting, organized by UNAIDS, took place in Geneva from 31 August to 2 September.