New sexual assault trial ordered for man accused of reneging on promise to wear protection
B.C.’s appeal court has ordered a new trial for a man acquitted of sexual assault after he allegedly reneged on a promise to wear a condom during sex.
In a case that explores the boundaries and definitions of sexual activity and consent, the three appeal court judges all reached the same conclusion — while apparently disagreeing with each other on exactly why.
Two of the judges agreed that sex without a condom is a fundamentally different activity — legally — from sex with a condom.
And one of those judges then switched sides to join the dissenting judge in finding there was evidence the accused had defrauded the alleged victim into having sex with him.
Either way, X faces another trial.
No ‘evidence of dishonesty’
The original B.C. provincial court trial in Surrey in 2018 ended in acquittal without X’s testimony. A provincial court judge found there was no evidence to support either the woman’s contention that she hadn’t consented to sexual activity or that her consent had essentially been obtained through fraud.
“I am unable to find any evidence of dishonesty on the part of the accused that could result in a conviction,” the trial judge wrote.
In the appeal, however, Justice Harvey Groberman concluded: “As there was evidence indicating that the accused engaged in sexual intercourse without a condom, knowing that the complainant required him to wear one, the judge erred in granting the no-evidence motion. In the result, I would set aside the acquittal and remit the matter to the provincial court for a new trial.”
In the opening to his majority reasons for judgment, Groberman wrote: “The question on this appeal is a simple one: where a person consents to engage in sexual intercourse on condition that their sexual partner wear a condom, can that partner ignore the condition without being subject to criminal liability?”
Insisted on use of condoms
The alleged offence occurred in March 2017, a few days after the couple first met in person. They had spoken online prior to that meeting and, face-to-face, they discussed sexual practices.
The woman said she told X she insisted on the use of condoms.
“The accused agreed that such a practice was safest for all concerned,” the appeal judgment says.
A few days later, the woman went to X’s house just after midnight, where they went up to his bedroom and undressed.
“She asked if he had a condom, and added that if he did not, she did,” the judgment says.
Awoke in the night
“He replied that he did, and reached onto a side table to get one, which he put on. The two then engaged in vaginal intercourse.”
According to the ruling, the woman awoke in the night to find X sexually aroused. She claimed she pushed him away and he turned briefly to the side table.
“Although the complainant believed that he was getting a condom, he was not doing so,” Groberman wrote. “The two then engaged in sexual intercourse.”
The woman said X told her he was “too excited to wear a condom.”
She took the matter to the police.
Related Nova Scotia case
Complicating matters in the appeal was a Supreme Court of Canada decision in which the country’s highest court considered questions of sexual activity and consent in a Nova Scotia case involving a man who poked a pin in a condom before having sex with a woman who then became pregnant.
In that ruling, the judges upheld the man’s sexual assault conviction, finding that while the victim consented to have sex, her consent was nullified by the accused’s deception.
“The accused’s condom sabotage constituted fraud … the result that no consent was obtained,” Chief Justice Beverley McLachlin and Justice Thomas Cromwell wrote on behalf of the court.
“A person consents to how she will be touched, and she is entitled to decide what sexual activity she agrees to engage in for whatever reason she wishes.”
But in X’s case, the implications of their ruling were interpreted differently by each of the B.C. appeal court judges.
What is ‘sexual activity’?
The question at the heart of the case concerns the definition of “sexual activity” and whether intercourse with a condom is a different type of activity from intercourse without.
Groberman and Justice Mary Saunders agreed that it was — and that as such, the woman had not consented to the sexual activity Kirkpatrick engaged in without protection.
“This is a case about sexual activity that the complainant consented to,” Groberman wrote.
“On her evidence, she did not consent to the accused penetrating her with his unsheathed penis.”
But Justice Elizabeth Bennett disagreed, saying the woman had consented to sexual activity.
Sided with Groberman
She said she didn’t think the Supreme Court of Canada judges meant to distinguish sex with a condom from sex without in defining “the basic physical act” of intercourse, in part because that could lead to the criminalization of defective condoms.
However, she still thought the lower court judge was wrong — because Bennett said there was enough evidence to conclude that Kirkpatrick had obtained the alleged victim’s consent through fraud to warrant holding a new trial.
Saunders — the judge who agreed with Groberman on the first part of the ruling — sided with Bennett and against Groberman on that part of the opinion.
X’s lawyer said his client is seeking leave to appeal the decision to the Supreme Court of Canada.
US: Ohio Supreme Court upholds the constitutionality of the State’s HIV Disclosure law
Statute Requiring Disclosure of HIV Positive Status to Sexual Partners Is Constitutional
The Supreme Court today unanimously upheld the constitutionality of R.C. 2903.11(B)(1), Ohio’s HIV-disclosure statute, which makes it a crime for a person who has tested positive for HIV to knowingly engage in sexual conduct with another without disclosing that information, concluding that it does not violate either the free speech provision of the First Amendment or the Equal Protection Clauses of the United States or Ohio Constitutions.
In a majority opinion authored by Justice Terrence O’Donnell, the Court concluded that because R.C. 2903.11(B)(1) regulates conduct, not speech, it does not violate the First Amendment, and because it is rationally related to the state’s legitimate interest in preventing the transmission of HIV to sexual partners who may not be aware of the risk, it does not violate equal protection.
Chief Justice Maureen O’Connor, Justice William M. O’Neill, and Eleventh District Court of Appeals Judge Thomas R. Wright, sitting for Justice Patrick F. Fischer, joined the majority opinion.
In a concurring opinion, Justice R. Patrick DeWine wrote that the law regulates speech as well as conduct. The concurrence found, however, that the law constitutionally regulates speech because it is narrowly tailored to achieve a compelling governmental interest and is the least-restrictive way of doing so. Justice DeWine’s concurrence was joined by Justices Sharon L. Kennedy and Judith L. French.
Batista Indicted for Violating R.C. 2903.11(B)(1) In 2001, while Orlando Batista was incarcerated on an unrelated charge, the Ohio Department of Rehabilitation and Correction tested him for HIV and informed him that he was positive for the disease. After his release, he began a relationship with a woman identified in court documents as R.S. and engaged in intercourse with her without disclosing his HIV positive status to her prior to engaging in that conduct. Two months later, R.S. learned of Batista’s HIV positive status. When R.S. confronted him about it, he acknowledged he had tested positive for the virus and told her he had been infected since he was a teenager. In a subsequent interview with police, Batista admitted to having intercourse with R.S. without telling her he was HIV positive.
A grand juryindicted Batista for violating R.C. 2903.11(B)(1). He moved to dismiss the indictment, arguing the law violated the First Amendment right to free speech and the Equal Protection Clauses of both the United States and Ohio Constitutions. The trial court denied the motion, and Batista subsequently pleaded no contest to the charge. The trial court found him guilty and sentenced him to eight years in prison.
The First District Court of Appeals affirmed the conviction, concluding the statute did not violate the First Amendment or the Equal Protection Clauses of the United States and Ohio Constitutions. Batista appealed to the Supreme Court, which agreed to hear the case.
Statute Regulates Conduct, Not Speech Justice Terrence O’Donnell, writing for the majority, explained that the First Amendment does not prohibit statutes that regulate conduct from imposing incidental burdens on speech.
The Court noted that the Missouri and Illinois supreme courts have held that statutes similar to R.C. 2903.11(B)(1) did not regulate speech and therefore did not violate the First Amendment.
Referencing those decisions, the majority concluded that “[a]lthough R.C. 2903.11(B)(1) requires those who know they are HIV positive to disclose their status if they choose to engage in sexual conduct with another person, the disclosure is incidental to the statute’s regulation of the targeted conduct. Thus, this statute regulates conduct, not speech, and therefore does not violate the First Amendment right to free speech.”
Statute Does Not Violate Right to Equal Protection Justice O’Donnell pointed out that R.C. 2903.11(B)(1)’s treatment of individuals with knowledge of their HIV-positive status who fail to disclose that status to a sexual partner furthers the state’s interest in “curbing HIV transmission to individuals who may not be aware of the risk,” and concluded that the statute does not violate equal protection because “there is some conceivable basis to support the legislative arrangement.”
He further explained that “the existence of other sexually transmitted diseases that may have serious public health and safety consequences does not eliminate the rational relationship between the classification here—individuals with knowledge of their HIV-positive status who fail to disclose that status to sexual partners—and the goal of curbing HIV transmission.”
The majority opinion concluded “that there have been advancements in the treatment of individuals with HIV that may have reduced the transmission and mortality rates associated with the disease. However, we cannot say that there is no plausible policy reason for the classification or that the relationship between the classification and the policy goal renders it arbitrary or irrational.”
Concurrence Finds Speech Regulation Justice DeWine wrote that he agrees with the majority that Batista’s rights were not violated, but reaches that conclusion “by a different path.”
“The statute plainly regulates both conduct and speech: one who tests positive for the human immunodeficiency virus (‘HIV’) must tell his partner that he is HIV positive before engaging in sex. When the government tells someone what he must say, it is regulating speech,” he wrote.
Justice DeWine explained that any law compelling content-based speech must pass the U.S. Supreme Court’s “strict scrutiny” test, which requires that a speech regulation be narrowly tailored to achieve a compelling government interest and use the least restrictive means to achieve it.
The concurrence stated that Ohio has an interest in limiting the spread of HIV and an interest in ensuring informed consent to sexual relations. The opinion noted that Batista essentially argued that because of the advancements of treatment, the health risks for HIV “are not really all that bad.”
“But the question is who gets to evaluate that risk: should the HIV-positive individual get to assess that risk for his sexual partner or should the partner get to make her own decision. Fair to say that most—if not all—people would insist on the right to make that decision for themselves,” the opinion stated.
The concurrence concluded that protecting public health and ensuring informed consent are compelling government interests, and that the law uses the least restrictive limit on speech by only requiring HIV-positive individuals to disclose their status to their sexual partners.
“I cannot fathom—and Batista has not advanced—any less restrictive or more narrowly tailored means that could have been employed by the government to achieve its interests here,” Justice DeWine wrote.
Please note:Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
Spanish Supreme Court sets important HIV criminalisation precedent
The Spanish Supreme Court has set an important precedent for HIV criminalisation cases, making it clear that it is not solely up to the defendant to prove that they disclosed their HIV-positive status, as other factors can inform a court’s judgement about whether or not a complainant knew the accused was HIV-positive. The ruling should also make it more difficult for people to pursue vexatious or ‘revenge’ cases against ex-partners.
As outlined in a (Spanish-language) analysis by Professor Miguel Angel Ramiro Avilés, Legal Clinic Coordinator at the University of Alcalá, this decision is an important step forward in the construction of a rights-based HIV response in Spain, permitting a defence based on the principle of dubio pro reo, and the constitutional guarantee of the presumption of innocence.
However, in his conclusion he notes:
Finally, at no time during the proceedings before the Court was the relationship of causality questioned, and an attempt was made to carry out a phylogenetic analysis; nor was the question of [the defendant’s] viral load raised before the Court. This is a step in a long road ahead.
However, informed consent (usually obtained by proving prior disclosure of known HIV-positive status by the accused to the complainant) can be a defence, as is the case in most jurisdictions using general criminal laws, and so cases hinge on whether or not a complainant was aware of an accused’s HIV-positive status before sex occurred and consented to the risk of ‘harm’.
The March 2020 Supreme Court decision relates to the case of a woman who began a romantic relationship with the defendant in 2012, living with him for approximately 18 months. She was diagnosed HIV-positive in September 2013. Police were called to their home in June 2014 following an argument. They separated approximately three months later.
Following the separation, the woman complained to the police based on her belief that she had acquired HIV from her ex-partner. The police filed an assault charge using Article 149.1 of the Spanish Penal Code: causing aggravated injury. The charge was based on her assertion that if she had known her partner had been living with HIV, she would not have had condomless sex with him.
After an initial ‘not guilty’ verdict at the Provincial Court of Madrid (due to the complainant’s inconsistent testimony), the case was elevated to the Supreme Court. Like the Provincial Court, the Supreme Court did not consider evidence relating to whether or not the man had actually transmitted HIV to the woman (considering neither viral load nor phylogenetic analysis), accepting the assertion of HIV transmission at face value. Instead, the case hinged on the credibility of the woman’s testimony and associated evidence, as considered through a lens of dubio pro reo, (‘in cases of doubt, then for the accused’; i.e. innocent until proven guilty.)
The woman testified that she had specifically asked her ex-partner whether he had HIV and he had denied it, so she did not know he was HIV-positive.
The court, however, was not convinced that she was unaware of his HIV-positive status for a number of reasons. She testified that she had used cocaine and hashish with him, which suggested to the Court that she knew he engaged in ‘high risk’ activities associated with HIV transmission. A former friend testified that ‘the entire neighbourhood knew’ that the accused had HIV, so he could not understand how the woman would not have known. The accused’s sister had also warned the woman to ‘protect herself’ and ‘take measures’: the sister said she was sure that the woman had understood her meaning given the context of their conversation.
Medical evidence showed that during the relationship the defendant had visible lesions on his penis, which worsened during and after sex, which the Court found the woman must have seen and understood to be evidence of a sexually transmitted infection.
Further, the court took a dim view of the fact that she reported her partner only after their separation, making no mention of the issue after her diagnosis or when police attended their home months earlier.
Points of law
The Court considered several points of law, including how to evaluate the available evidence. The judgement outlines that, generally, criminal law is not an appropriate tool where a person understands the risk; has as much control of the risk as the other party; consents to the act causing injury; and is injured as a result. These factors are comparable to a person deciding to have condomless sex with a partner they know has HIV, knowing that doing so can transmit HIV, with HIV transmission resulting.
Consequently, the Court found that instead of needing to focus legal analysis on the ‘presumption of innocence’ in relation to the accused, the appropriate principle to be tested was dubio pro reo, which tests whether ‘a credible doubt arises as to the veracity of the assertion of facts’. This principle means that, if ambiguity is found, the matter should be resolved in favour of the more lenient finding.
Ultimately, the court dismissed the charges of aggravated injury as the court found there was “a reasonable doubt as to the ignorance of the woman about the health status” of her ex-partner. The decision suggests that the woman could have deduced or may have known her partner had HIV.
Acknowledgement: Thank you to Miguel Angel Ramiro Avilés for making his analysis of the court decision so promptly available to HJN.
HIV criminalisation still an issue during COVID-19 pandemic
On 21 February, just prior to the start of the COVID-19 pandemic, we celebrated a week where – for the first time in years – we saw no reported cases of HIV criminalisation anywhere in the world.
Soon after we began to notice fewer reports of HIV criminalisation cases and fewer articles related to our collective advocacy. We wondered at the time whether this may be due, in part, to our previous advocacy successes, athough we thought it was more likely a reflection of the media and the criminal justice system changing their focus to COVID-19.
Certainly, police have been unbelievably busy dealing with ensuring lockdowns and quarantines are followed – some more zealously than others – and courts, as well as parliaments are either closed or dealing only with the most urgent of cases. This is having a concerning impact upon the processing of HIV criminalisation cases, including appeals, leaving those unjustly accused or convicted in limbo and at greater risk of acquiring COVID-19 whilst on remand or in prison.
The US news report notes – without obvious irony – the Kafkaesque nature of the law in Louisiana by concluding:
While saliva alone cannot transmit HIV or AIDS, Louisiana law holds that knowingly infected people who spit at first responders can face up to 11 years in prison and/or pay a $6,000 fine.
This week, we also saw a remarkably comprehensive article about HIV criminalisation in Tajikistan, which explored how and why the country’s criminal code potentially considers every HIV-positive citizen to be a criminal, what this means for people living with HIV in the country, and how to avoid prosecution as well as ways to organise.
Finally, some good news relating to HIV criminalisation as well as to COVID-19 criminalisation.
And in Malta, where it was proposed earlier in the week to add COVID-19 to the list of communicable diseases covered by the law used to criminalise the wilful or negligent spread of HIV and hepatitis, this proposal has since been put on hold, due to very real concerns that this may do more harm than good for public health, as well as create difficulties around proof in court.
The law could also strain the already stretched law enforcement resources if they suddenly had to deal with a flood of reports over possible criminal spreading of the virus.
“In essence, this seems like a good idea at first glance but it presents a number of problems,” one government minister privy to the discussions said.
The possibility of such a reform had not even been brought before Cabinet yet, he said, adding he understood it “has been put on the back burner for now”.
“We have bigger fish to fry, right now.”
If only other punitive-minded governments – and overly-zealous law enforcement officers – around the world thought this way about COVID-19 and other communicable diseases right now, including, of course, HIV.
The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn dismissal of appeal in Singapore HIV criminalisation case
The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn dismissal of appeal in Singapore HIV criminalisation case
The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn the dismissal of the appeal by a Singaporean man living with HIV who was convicted to two years’ imprisonment for not disclosing his status to his sexual partner and for not communicating the risk of HIV transmission to his sexual partner. We are particularly concerned that the judgement has emphasised the lack of explaining the risk of HIV transmission as the main reason for dismissing the appeal.
“HIV prevention is a shared responsibility and therefore not the sole responsibility of people living with HIV. If more people are sensitised to the rights of people living with HIV, including their sexual rights, and were aware of the mechanisms of HIV transmission there would be far less stigma and discrimination towards people living with HIV. Furthermore, HIV criminalisation creates a bad public health environment where people living with HIV have fears in disclosing their status, which lead to delay in engaging in care and treatment,” said Rico Gustav, Executive Director of GNP+.
According to the Infectious Diseases Act in 2016 of Singapore, Section 23 (1) a person who knows that he has HIV Infection shall not engage in any sexual activity with another person unless, before the sexual activity takes place — (a) he has informed that other person of the risk of contracting HIV Infection from him; and (b) that other person has voluntarily agreed to accept that risk.
“HIV is the only disease singled out as a transmittable disease in the Infectious Diseases Act,” said Edwin Bernard, Global Co-ordinator of the HIV Justice Network. “Not only does this perpetuate stigma, it also creates a false sense of security, suggesting that only people with diagnosed HIV can transmit HIV, when many new infections come from those who are undiagnosed. Ironically, a law such as this one that places such an onerous burden on people with diagnosed HIV, is only likely to make HIV testing, and open and honest discussions around HIV, less likely.”
Furthermore, the facts of the case reported in the judgement suggest that there was no effective HIV risk during any sexual activity, regardless of whether or not disclosure – and acceptance of risk – was established beyond reasonable doubt. Condoms were used early in the relationship, and subsequently when condoms were not used, the unjustly convicted man had a very low viral load.
As expressed in the Expert Consensus Statement on the Science of HIV in the context of criminal law, HIV criminalisation laws and prosecutions have not always been guided by the best available scientific and medical evidence, have not evolved to reflect advancements in knowledge of HIV and its treatment, and can be influenced by persistent societal stigma and fear associated with HIV. HIV continues to be singled out, with prosecutions occurring in cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven.
GNP+ and HJN not only strongly condemn this legislation and the dismissal of appeal of this case, but all kinds of HIV criminalisation, which often entails legislation that is applied in a manner inconsistent with contemporary medical and scientific evidence and includes overstating both the risk of HIV transmission and also the potential for harm to a person’s health and wellbeing. Such limited understanding of current HIV science reinforces stigma and may lead to human rights violation and undermines efforts to address the HIV epidemic.
Colombia: Constitutional court overthrows HIV criminalisation article
Court buries article criminalizing the spread of HIV
Google translation, for article in Spanish, scroll down.
Among the reasons for the decision, the high court stated that the rule “stigmatized” a population.
Three reasons led the Constitutional Court on Wednesday to overturn Article 411 of Law 599 of 2000, which penalized the spread of the Acquired Immunodeficiency Virus, HIV, and of Hepatitis B.
A first reason was that this rule was not a necessary and proportional measure. Second, it stigmatized a population. And the third is that there is another rule in the Penal Code that already typifies the spread of epidemics.
The Court’s decision accepted several of the plaintiff’s arguments. According to the plaintiff, the rule violated the rights to equality and restricted the free development of personality, in particular sexual freedom.
The norm established that there would be a prison term of 6 to 12 years for those who, knowing they are HIV positive or sick with hepatitis B, “carry out practices by means of which they can contaminate another person, or donate blood, semen, organs or, in general, anatomical components”.
According to the lawsuit, this penalized the fact that a person living with these diseases had sex, and made it a crime regardless of whether that person took the preventive measures that make the transmission of diseases unlikely, such as antiretroviral treatments and others.
The plaintiff argued that, although the purpose of this measure was to protect public health, this did not justify prohibiting a population group from freely expressing its sexuality, and stressed that there would be no effect when there were consensual relationships in which measures were taken to prevent contagion.
Regarding the violation of equality, the lawsuit held that the article only referred to and penalized people with HIV or hepatitis B, and not others with potentially contagious and delicate diseases.
As part of the debate on this law, the Court received 15 statements from different organizations, ministries, universities, and even from the Constitutional Court of South Africa – against it – to take into consideration. And there were almost as many arguments in favour as against.
The Colombian League for the Fight against AIDS supported the lawsuit because it considered that the law did violate rights, added that laws that penalize exposure to HIV leave the entire burden of prevention on people living with it and said that the real challenges were more education and better access to medical testing and counseling services.
The statement sent by the Ministry of Justice gave reason to the plaintiff that the rule was discriminatory because it was addressed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B. It also argued that there was no justification for the rule being for people with these two diseases and not for others who are aware of having different risks of infectious-contagious diseases.
However, faced with the restriction of sexual freedom, the Ministry of Justice considered: the rule “does not violate the right to the free development of the personality, but is limited to establishing the penal consequences that its abusive and harmful exercise entails with respect to the rights of others and the community”.
The Ministry of Health indicated, on the contrary, that the article did not violate either the right to equality or the free development of the personality and asked to leave it as it was.
The Attorney General’s Office agreed with the plaintiff that the rule punished the fact of having sex even when there was no transmission of the disease, which, says the Public Prosecutor’s Office, is not true. For the Attorney General’s Office, the rule was clear that in order for the crime to be configured there must be an intention to cause harm by engaging in practices that could end in contagion. The Public Prosecutor’s Office asked the Court to declare itself inhibited.
Corte tumba artículo que penalizaba la propagación del VIH
Entre las razones, el alto tribunal dijo que la norma “estigmatizaba” a una población.
Una primera razón es que esta norma no era una medida necesaria y proporcional. La segunda, estigmatizaba a una población. Y la tercera es que hay otra norma en el Código Penal que tipifica ya la propagación de epidemias.
La decisión de la Corte acoge varios argumentos del demandante. Según este, la norma vulneraba los derechos a la igualdad y restringía el libre desarrollo de la personalidad, en particular, la libertad sexual.
La norma establecía que habría prisión de 6 a 12 años para quien, sabiéndose portador del VIH o enfermo de hepatitis B, “realice prácticas mediante las cuales puedan contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.
De acuerdo con la demanda, esto penalizaba el hecho de que una persona que viviera con estas enfermedades tuviera sexo, y lo convertía en delito sin importar si se esa persona tomaba las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.
El demandante sostenía que, aunque el fin de esta medida era proteger la salud pública, esto no justificaba prohibirle a un grupo poblacional expresar libremente su sexualidad, y resaltaba que no habría afectación cuando se tuvieran relaciones consensuadas en las que se tomaran medidas para prevenir contagios.
Sobre la vulneración a la igualdad, la demanda sostenía que el artículo solo se refería y penalizaba a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.
Como parte del debate sobre esta norma, la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica- en contra-, para alimentar sus consideraciones. Y hubo casi tantos argumentos a favor como en contra.
La Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que con la norma sí se vulneraban los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.
El concepto enviado por el Ministerio de Justicia le dio la razón al demandante en que la norma es discriminatoria pues estaba dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B. También argumentó que no se advertía justificación para que la norma fuera para personas con esas dos enfermedades y no para otras que conscientes de tener enfermedades infectocontagiosas riesgosas distintas.
Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró: la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”.
El Ministerio de Salud indicó, al contrario, que la norma demandada no vulneraba ni el derecho a la igualdad ni el libre desarrollo de la personalidad y pidió dejarla como estaba.
La Procuraduría coincidió con el demandante en que la norma castigaba el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma era clara en que para que se configurara el delito debía existir una intención de causar daño realizando prácticas que podían terminar en contagio. El Ministerio Público pidió a la Corte declararse inhibida.
France: Highest Court confirms that people living with HIV with an undetectable viral load can never be prosecuted as the risk of transmission is nul
Source TETU, Published 20/03/2019 – Google translation, for article in French please scroll down.
Can a person living with HIV be prosecuted if she is under treatment? The Court of Cassation (French Highest Court) delivers a landmark decision.
In a decision handed down on 5 March, the Court of Cassation ruled that it was impossible to prosecute an HIV-positive man on treatment who had sex without a condom and without informing his partner of his HIV status.
That’s a first. In a decision handed down on 5 March, the Court of Cassation recognised the preventive nature of HIV treatment. Thus, any person whose viral load is undetectable, who has sex without a condom with another person without the latter being aware of the HIV status of his or her partner, cannot be prosecuted.
In this case, a woman who had sex with a man who was HIV-positive and undergoing treatment sued the man on the grounds that he had not previously informed her of his HIV status. The partner was not infected. However, the man was prosecuted on the grounds of “administration of a harmful substance”, i.e. alleged exposure to the virus.
Non-harmful bodily fluids
The investigating judge did not give rise to prosecution. A decision from which the civil party has appealed. But the woman was once again dismissed. According to the Court of Appeal, it has been proven that the “HIV viral load” was “constantly undetectable since 3 September 2001”. The man was “strictly and permanently compliant with the treatment, so that his HIV status was only potential but not current”.
And the judges of the Court of Appeal ruled: “The carrier’s bodily fluids cannot be considered harmful on the date of the alleged acts”.
A significant reminder from the judges, who stated that it takes “a detectable viral load in an infected person for him/her to infect any partner”.
A purely mathematical margin of error
Moreover, the judges of the Court of Appeal acknowledged that there was indeed a margin of error, but that it was purely mathematical. Thus, they conceive of the idea of the “non-zero risk” of HIV transmission by a person undergoing treatment. A risk they call “very small” since it is about one in 10,000. And according to them, this margin of error does not make it possible to condemn the carrier of the virus.
The civil party has appealed to the Supreme Court. The High Court dismissed the appeal, aligning itself with the judges of first instance.
Peut-on poursuivre une personne séropositive sous traitement ? La Cour de cassation rend un arrêt historique
Dans un arrêt rendu le 5 mars dernier, la Cour de cassation a affirmé qu’il était impossible de poursuivre un homme séropositif sous traitement, ayant eu des relations sexuelles sans préservatif et sans informer sa partenaire de son statut sérologique.
C’est une première. La Cour de cassation a reconnu, dans un arrêt rendu le 5 mars dernier, le caractère préventif du traitement contre le VIH. Ainsi, ne saurait être poursuivie toute personne dont la charge virale est indétectable, qui aurait des relations sexuelles sans préservatif avec une autre personne sans que celle-ci ne soit au courant du statut sérologique de sa/son partenaire.
Dans cette affaire, une femme ayant eu des relations sexuelles avec un homme, porteur du VIH et sous traitement, a engagé des poursuites contre ce dernier au motif qu’il ne l’avait pas prévenue au préalable de son statut sérologique. Sa partenaire n’a pas été contaminée. Pourtant, l’homme était poursuivi au motif « d’administration d’une substance nuisible », c’est-à-dire à une prétendue exposition au virus.
Des fluides corporels non nuisibles
Le juge d’instruction n’a pas donné lieu aux poursuites. Une décision de laquelle la partie civile a fait appel. Mais la femme s’est fait une nouvelle fois débouter. Selon la Cour d’appel, il a été prouvé que « la charge virale de VIH » était « constamment indétectable depuis le 3 septembre 2001 ». L’homme a fait « compliance stricte et permanente au traitement, de sorte que la séropositivité n’était plus que potentielle mais non actuelle ».
Et les juges de la Cour d’appel de statuer : « Les fluides corporels du porteur ne sauraient être tenus pour nuisibles à la date des agissements qui lui sont reprochés ».
Un rappel non négligeable des juges, qui affirment qu’il faut « une charge virale détectable chez une personne infectée pour qu’elle puisse contaminer quelque partenaire ».
Une marge d’erreur purement mathématique
Par ailleurs, les juges de la Cour d’appel ont reconnu qu’il existait bel et bien une marge d’erreur, mais qu’elle était purement mathématique. Ainsi, ils conçoivent l’idée du « risque non nul » de la transmission du VIH par une personne sous traitement. Un risque qu’ils qualifient d’ »infime » puisqu’il est d’environ un sur 10.000. Et selon eux, cette marge d’erreur ne permet pas de condamner le porteur du virus.
La partie civile s’est pourvue en cassation. La haute juridiction a rejeté le pourvoi, s’alignant sur les juges de première instance.
Mexico: Supreme Court finds Veracruz law criminalising ‘wilful transmission’ of HIV and STIs to be unconstitutional
The full ruling is not yet available, but according to a news story published yesterday in 24 Horas.
…it was pointed out that the criminal offense is “highly inaccurate” because it does not establish what or what is a serious illness, besides it is not possible to verify the fraud in the transmission [and] that although the measure pursued the legitimate aim of protecting the right to health, especially for women and girls, the measure did not exceed the analysis of need because it was not ideal and optimal for the protection of that purpose, especially as [Veracruz] already criminalised the ‘willful putting at risk of contagion of serious illnesses’…
The Minister President of the Court, Luis María Aguilar Morales, took up the recommendations of the Joint United Nations Program on HIV / AIDS and the Oslo Declaration on HIV Criminalisation, regarding the criminalization of HIV, and argued that this article left to the will of the investigating authority to decide which diseases will be considered as serious and which will not, going against the principle of legality, which implies that the crimes cannot be indeterminate or ambiguous.
In this case, the President said, the article did not establish whether STIs are only those considered serious or any, regardless of their severity. In turn, the justices determined that the resolution has a retroactive effect, that is, that those persons tried under the offense established by this article, the resolutions are invalidated.
On August 4, 2015, the Congress of the State of Veracruz approved an amendment to Article 158 of the Criminal Code in order to add the term Sexually Transmitted Infections, which included HIV and HPV.
It provided for a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days of salary for anyone who “willfully” infects another person with a disease via sexual transmission.
We applaud the declaration of the Supreme Court of Justice of the Nation, which gives us the reason for the unconstitutionality request, shared with the National Commission of Human Rights; For this reason, we suggest to the deputies of the Congresses of the State that before legislating, they should be trained in the subject and that they do not forget that their obligation is to defend Human Rights, not to violate them.
Finally, the Mexican Network against the Criminalization of HIV recognizes that there are still many ways to go and many battles to fight, but we can not stop celebrating this important achievement.
Read the English text of the HIV JUSTICE WORLWIDE amicus letter below.
HIV JUSTICE WORLDWIDE
This is a letter of support from HIV JUSTICE WORLDWIDE to Grupo Multi VIH de Veracruz / National Commission of Human Rightswho are challenging Article 158 of Penal Code of the Free and Independent State of Veracruz that criminalises ‘intentional’ exposure to sexually transmitted infections or other serious diseases, on the grounds that this law violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.
As a coalition of organisations working to end the overly broad use of criminal laws against people living with HIV, we respectfully share Grupo Multi VIH de Veracruz’s concerns around Article 158 which potentially stigmatises people with sexually transmitted diseases and criminalises ‘intentional’ exposure to sexually transmitted infections (potentially including HIV) or other serious diseases.
All legal and policy responses to HIV (and other STIs) should be based on the best available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights. There is no evidence that criminalising HIV ‘exposure’ has HIV prevention benefits. However, there are serious concerns that the trend towards criminalisation is causing considerable harm.
Numerous human rights and public health concerns associated with the criminalisation of HIV non-disclosure and/or potential or perceived exposure and/or transmission have led the Joint United Nations Programme on HIV/ AIDS (UNAIDS) and the United Nations Development Programme (UNDP), the UN Special Rapporteur on the right to health, the Global Commission on HIV and the Law and the the World Health Organization, to urge governments to limit the use of the criminal law to extremely rare cases of intentional transmission of HIV (i.e., where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it). They have also recommended that prosecutions [for intentional transmission] “be pursued with care and require a high standard of evidence and proof.” 
In 2013, UNAIDS produced a comprehensive Guidance Note to assist lawmakers understand critical legal, scientific and medical issues relating to the use of the law in this way. In particular, UNAIDS guidance stipulates that:
“[I]ntent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/or non-disclosure of that status.
Intent to transmit HIV cannot be presumed or solely derived from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.
Proof of intent to transmit HIV in the context of HIV non-disclosure, exposure or transmission should at least involve (i) knowledge of positive HIV status, (ii) deliberate action that poses a significant risk of transmission, and (iii) proof that the action is done for the purpose of infecting someone else.
Active deception regarding positive HIV-status can be considered an element in establishing intent to transmit HIV, but it should not be dispositive on the issue. The context and circumstances in which the alleged deception occurred—including the mental state of the person living with HIV and the reasons for the alleged deception— should be taken into consideration when determining whether intent to transmit HIV has been proven to the required criminal law standard.”
Moreover, where criminal liability is extended to cases that do not involve actual transmission of HIV (contrary to the position urged by UNAIDS and other experts), such liability should, at the very bare minimum, be limited to acts involving a “significant risk” of HIV transmission. In particular, UNAIDS guidance contains explicit recommendations against prosecutions in cases where a condom was used, where other forms of safer sex were practiced (including oral sex and non-penetrative sex), or where the person living with HIV was on effective HIV treatment or had a low viral load. Being under treatment or using other forms of protections not only show an absence of malicious intent but also dramatically reduces the risks of transmission to a level close to zero. Indeed, a person under effective antiretroviral therapy poses – at most – a negligible risk of transmission and is therefore no different from someone who is HIV-negative.
Moreover, there is growing body of evidence that such laws that actually or effective criminalise HIV non-disclosure, potential or perceived exposure, or transmission, negatively impact the human rights of people living with HIV due to:
selective and/or arbitrary investigations/prosecutions that has a disproportionate impact on racial and sexual minorities, and on women.
confusion and fear over obligations under the law;
the use of threats of allegations triggering prosecution as a means of abuse or retaliation against a current or former partner;
improper and insensitive police investigations that can result in inappropriate disclosure, leading to high levels of distress and in some instances, to loss of employment and housing, social ostracism, deportation (and hence also possibly loss of access to adequate medical care in some instances) for migrants living with HIV in some cases;
limited access to justice, including as a result of inadequately informed and competent legal representation;
sentencing and penalties that are often vastly disproportionate to any potential or realised harm, including lengthy terms of imprisonment, lifetime or years-long designation as a sex offender (with all the negative consequences for employment, housing, social stigma, etc.);
stigmatising media reporting, including names, addresses and photographs of people with HIV, including those not yet found guilty of any crime but merely subject to allegations.
In addition, there is no evidence that criminalising HIV (or other sexually transmitted infections) help protect women and girls from infections.
Women are often the first in a relationship to know their HIV status due to routine HIV testing during pregnancy, and are less likely to be able to safely disclose their HIV-positive status to their partner as a result of inequality in power relations, economic dependency, and high levels of gender-based violence within relationships.
Such a law does nothing to protect women from the coercion or violence that effectively increases the risk of HIV transmission. On the contrary, such laws place women living with HIV, especially those in vulnerable positions and abusive relationships, at increased risks of both prosecution and violence.
Some evidence suggests that fear of prosecution may deter people, especially those from communities highly vulnerable to acquiring HIV, from getting tested and knowing their status, because many laws only apply for those who are aware of their positive HIV status. HIV criminalisation can also deter access to care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals because medical records can be used as evidence in court.
Finally, there is evidence of an additional negative public health impact of such laws in terms of:
increasing HIV-related stigma, which has an adverse effect on a person’s willingness to learn about, or discuss, HIV; and
undermining the importance of personal knowledge and responsibility (correlative to degree of sexual autonomy) as a key component of an HIV prevention package, when instead prevention of HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.
We hope that the Mexico Supreme Court of Justice takes our concerns and all of this evidence into account when considering the Constitutional Challenge.
Edwin J Bernard, Global Co-ordinator, HIV Justice Network
on behalf of all HIV JUSTICE WORLDWIDE partners: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO).
 HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations working together to end overly broad HIV criminalisation. The founding partners are: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV/AIDS Alliance, UNAIDS and UNDP.
 UNAIDS. Policy Brief: Criminalisation of HIV Transmission, August 2008; UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
 Anand Grover. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, June 2010.
 Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
 WHO. Sexual health, human rights and the law. June 2015.
 Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
 UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
 A.J. Rodger et al., “Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy,” JAMA 316, 2 (12 July 2016): pp. 171–181.
N.S. appeal will give guidance for future HIV non-disclosure cases, lawyers say
Tuesday, February 27, 2018 @ 9:25 AM | By Terry Davidson
The acquittal of an HIV-positive man in an East Coast non-disclosure case will further guide Canada’s legal community in its response to new science around risk of transmission, experts say.
The Nova Scotia Court of Appeal decision in R. v. Thompson 2018 NSCA 13, rendered Feb. 15, involves Claude Thompson, an Antigonish man who was charged with failing in 2011 to tell two women he was HIV-positive before having consensual sex with them.
During Thompson’s 2016 trial, Justice Suzanne Hood found that Thompson had been taking antiviral drug therapy and used a condom with the first complainant but not the second. She also leaned on expert testimony that there was negligible risk of transmission in this case.
As a result, Justice Hood acquitted Thompson of two counts of aggravated sexual assault, but deemed him guilty of the “lesser and included offences of sexual assault causing bodily harm” after finding the two women suffered psychologically from the initial uncertainty of not knowing if they had been infected. (Both subsequently tested negative.)
This, she ruled, vitiated their consent.
But Appeal Court Justice Duncan Beveridge threw out Thompson’s bodily harm convictions, ruling that unless there was a realistic possibility of transmission, consent could not be vitiated simply by psychological harm.
“The sole issue in this case is whether psychological harm said to have been caused by non-disclosure of HIV status vitiates consent to sexual activity.” The short answer is no, it does not,” stated Justice Beveridge, with Justices Linda Lee Oland and Joel Fichaud in agreement. “Failure by a sexual partner to disclose that he or she has a sexually transmitted disease is morally reprehensible, but it is not usually a crime.”
Justice Beveridge went on to talk of stress and upset being “irrelevant” in the “eyes of the law.”
“Emotional stress or upset, even if they could legitimately amount to bodily harm within the meaning of the Criminal Code, are, in the eyes of the law, irrelevant.”
In December, the federal government released the Criminal Justice System’s Response to Non-Disclosure of HIV, a research paper warning of the over-criminalization of infected people who don’t disclose their condition but pose a “negligible” risk to non-infected partners. It also lays out various sexual scenarios which would involve a low — or even nonexistent — possibility of transmission, even if a condom is not used.
Criminal law, it stated, should not apply to those who do not disclose but have maintained a suppressed viral load, are taking antiretroviral treatment, use condoms or engage only in oral sex.
Following the paper’s release, Ontario’s Ministry of the Attorney General announced that the province’s Crowns would be told to limit non-disclosure prosecutions, particularly for those on antiretroviral therapy and with “a suppressed viral load.”
Defence lawyers urged Crowns to re-examine both current non-disclosure cases and past convictions in light of evolving medical science.
The release of the paper was the next chapter in the changing legal landscape when it comes to non-disclosure cases.
Before it came Mabior.
In 2012, the Supreme Court of Canada ruled in R. v. Mabior 2012 SCC 47 that an infected person was not legally required to disclose their HIV-positive status if they carried a low viral load and used a condom. However, the SCC left room for some tweaking should laws need to adapt to changing science.
Toronto lawyer Cynthia Fromstein said the adherence to medical science in the Thompson case will serve to further guide Canada’s legal community in non-disclosure cases.
“It’s important because it’s a court of appeal decision that is making it very clear in terms of the reliance on medical science [being] the directive as to whether someone poses a realistic risk of transmission,” said Fromstein. “That’s important because we can now use that. As a defence counsel, I can use that on cases where they are still prosecuting. If there is a prosecution for oral sex, or a prosecution where there is a condom used, now there is some law that is supportive of the notion of what it takes … to find someone guilty, and perhaps it will also influence (provincial attorney generals) in not prosecuting, the fact that there is a legal directive, a court of appeal decision.”
Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, said Justice Hood’s psychological harm conviction of Thompson was of some concern.
“For years we have seen many different attempts by some actors in the justice system to expand the criminal law against people living with HIV,” said Kazatchkine in an e-mail. “Such attempts have included pushing the psychological harm argument. While the trial judge’s verdict in Thompson … was concerning (and unjust), we knew there was no legal basis for such argument. … The interpretation of the legal text of a ‘realistic possibility of transmission’ has created uncertainty, but the law around HIV non-disclosure has always been clear: there can be no conviction for non-disclosure in absence of actual transmission or a significant risk of transmission.”
The Compendium aims to provide lawyers with a tool to successfully defend people living with HIV who are being prosecuted for alleged HIV non-disclosure, exposure, or transmission. It catalogues and analyses criminal cases from across the world where “strong defence arguments have resulted in an acquittal or reduced penalty”.