Canada: Alberta Court of Appeal upholds mandatory registration of sex offenders even if the assault conviction was based on HIV non-disclosure

In split decision, Alberta Court of Appeal endorses mandatory sex offender registration

An HIV-AIDS legal advocate says Alberta’s top court has turned a deaf ear to the concerns of Canada’s HIV-AIDs community by upholding the automatic, lifetime listing of convicted sex offenders in a national registry, even if the assault conviction is based on a failure to disclose HIV or AIDS.

In a Sept. 3 split decision in R. v. Ndhlovu 2020 ABCA 307, the majority for the Alberta Court of Appeal overturned a 2016 ruling by now retired Alberta Court of Queen’s Bench Justice Andrea B. Moen, who found that Eugen Ndhlovu should not be subjected to mandatory registration and reporting for life under the Sex Offenders Information Registration Act (SOIRA), even though he had been convicted of two counts of sexual assault.

The Toronto-based Canadian HIV/AIDS Legal Network (CHALN) and the HIV and AIDS Legal Clinic Ontario (HALCO) applied for and were granted joint intervener status by the Alberta Court of Appeal. They argued that when sexual activity is consensual, an accused with HIV or AIDS with a suppressed viral load and no realistic possibility of transmitting HIV should not be prosecuted and that automatic listing of such offenders in the national sex offender registry is overbroad and grossly disproportionate under the Charter. CHALN and HALCO were the only interveners in the case.

However, the Court of Appeal declined to assess what it described as a “hypothetical” scenario involving a sexual offence stemming from non-disclosure of HIV.

“As this Court has previously found, assessing hypotheticals afresh on appeal is not ideal,” Justice Frederica Schutz wrote for the majority, including Justice Frans Slatter. “More specifically, in this matter the issues raised by the Intervenors including inter alia, assessing the risk of HIV transmission posed by an offender’s viral load, are outside the bounds of the facts and evidence presented in this case, particularly if the offender was to stop taking his medication.”

Richard Elliott, executive director of the Canadian HIV-AIDS Legal Network said more than 200 people a year in Canada plead guilty to, or are convicted of, sex-related charges due to HIV non-disclosure. Most typically, he said, the charge is aggravated sexual assault.

“There’s an ongoing problem here with what we characterize and many increasingly recognize as the overly broad use of the criminal law in this domain, and it has these very serious, harsh consequences,” he told The Lawyer’s Daily. “In addition to the ordinary sentencing provisions about years of imprisonment — including potential maximum life imprisonment for an aggravated sexual assault charge — there’s also this added punitive feature of mandatory lifetime designation as a sex offender.”

The Court of Appeal’s choice to ignore the issue was, at the very least, a surprise, said Elliott.

“The court itself granted us intervener status, presumably on the basis that they felt that the argument we proposed to advance had some relevance to the issue,” he said. “So having done that, it’s a bit strange to then not address the issue that you authorized the interveners to bring forward. So I’m not really sure what the point was.”

SOIRA was amended by the Conservative government of former prime minister Stephen Harper in 2011 to remove judicial discretion and require mandatory lifetime registration for anyone convicted of more than one sexual offence. The registry is only accessible by law enforcement officials. Those registered under SOIRA are also required to report to law enforcement authorities once a year for life. Both Justice Schutz and Justice Slatter are Harper appointees.

At his 2015 trial, Ndhlovu, then 19, was found guilty of sexually assaulting two women at a 2011 house party. Justice Moen later sentenced him to six months in jail followed by three years of probation. But she found the provisions in the Criminal Code related to SOIRA violated s. 7 of the Charter because she concluded they are overbroad and grossly disproportionate.

In a 2018 challenge by the Crown, Justice Moen found that those provisions could not be saved by the Charter’s s. 1 reasonable limits clause. The Alberta Court of Appeal majority disagreed.

“I conclude the sentencing judge erred in finding that the respondent had established a deprivation of his right under s. 7 to life, liberty or security of the person that was not in accordance with the principles of fundamental justice,” wrote Justice Schutz. “In the result,” she added, “ss 490.012 and 490.0 13(2.1) of the Criminal Code are constitutionally valid.

“The registration and reporting requirements under SOIRA are not so onerous as to be divorced from the purpose of the legislation,” the majority found.

In a dissenting opinion, Justice Ritu Khullar, appointed by Prime Minister Justin Trudeau in 2018, found that sections 490.012 and 490.013(2.1) of the Criminal Code violate an individual’s s. 7 liberty rights and are overbroad because they apply to sex offenders who are a very low risk to reoffend, like Ndhlovu.

“The Crown failed to show that s 490.013(2.1), which requires lifetime registration for offenders who have committed more than one designated offence, minimally impairs the liberty interest of very low risk offenders,” wrote Justice Khullar. “It also failed to establish that s 490.0 12 requiring mandatory registration, or s 490.013(2.1), contributed to any extent to preventing or investigating sexual crimes, so both provisions are disproportionate under the final stage of the Oakes test.”

The Oakes test is an analysis of the Charter’s limitations clause created by the Supreme Court of Canada in its decision in R. v. Oakes [1986] 1 S.C.R. 103.

The split Alberta Court of Appeal decision now opens the way potentially for the issue of mandatory, lifetime registration under SOIRA to go before the Supreme Court of Canada. Lawyer Elvis Iginla of Edmonton-based Iginla & Co., who served as counsel for Ndhlovu, did not respond to a request for an interview.

Professor Lisa Silver with the University of Calgary Faculty of Law called the majority decision a “very old school way of looking at constitutional law.”

“The majority does talk about in their reasons the importance of deference to Parliament,” she told The Lawyer’s Daily. “And in paragraph 88, the majority goes on to say policymakers are entitled to make choices within a reasonable range of options. The courts are not Parliament’s micro-managers.

“Of course,” she added, “the flip side of it is that courts have a duty to be that judicial scrutiny, that oversight, when it comes to legislation to ensure that it is consistent with the Charter.”

Silver said there is an increased possibility that the Supreme Court of Canada would grant leave to appeal the Appeal Court decision because Justice Khullar’s strong dissent brings out a different perspective on s. 7 of the Charter by highlighting privacy interests.

“That to me is an issue of national importance,” she said, “and it’s also an issue that hasn’t been fully developed in the Supreme Court of Canada.”

The Supreme Court of Canada might also intervene because the majority may have made an error by accusing the sentencing judge of reformulating the objective of the SOIRA amendments, said Silver.

However, she noted, a decision is already pending from the Supreme Court in Attorney General of Ontario v. G., which relates to mandatory listing on the Ontario sex offenders’ registry (Christopher’s Law) for a person who was deemed not criminally responsible.

The Ontario Court of Appeal unanimously allowed G’s appeal and concluded that the provincial and federal sex offender registries infringed G’s s. 15 Charter rights (and those of individuals in his situation), and that such infringements cannot be saved under s. 1. The Court of Appeal declared Christopher’s Law and SOIRA to be of no force or effect in their application to individuals in G’s situation. The Attorney General of Ontario appealed to the Supreme Court of Canada and arguments have been heard.

“Even though it’s not the same kind of offender,” said Silver, “it doesn’t make a difference when it comes to the Charter argument. I wonder, though, if the Supreme Court of Canada, when they come to their decision in G., is going to make the kind of broad comments about these kinds of legislation and how the Charter applies to them.”

Elliott agreed that there is a good chance the Supreme Court will want to review the Alberta Court of Appeal decision upholding mandatory registration of sex offenders.

“This is a live issue, and it seems to me that it may well be the sort of issue that the Supreme Court is ultimately going to have to revisit,” he said. “If they chose to revisit it, whether it’s in granting leave to appeal from this decision or in a subsequent case that may come along, certainly our concern will still remain as long as HIV non-disclosure is being captured under the law of sexual assault and these consequences therefore attach to people.”

Canada: Statement about Court of Appeal decision that a condom alone is not enough to preclude duty to disclose HIV status

Statement: Court decision means lawmakers must act to end unjust, unscientific prosecutions of People Living with HIV

The following statement is issued jointly by the Canadian HIV/AIDS Legal Network (“Legal Network”), the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA), and the HIV & AIDS Legal Clinic Ontario (HALCO).

August 7, 2020 — This week, the Ontario Court of Appeal released its decision in R. v N.G., a case in which a young man living with HIV appealed his conviction on aggravated sexual assault charges for not disclosing his HIV-positive status before sexual intercourse — despite using a condom in every instance. There was no allegation that HIV was transmitted and no evidence of any incorrect condom use.

We appeared before the Court as interveners when the appeal was heard in February. We argued that correct condom use is, and should be, sufficient to prevent criminal prosecution, based on sound science, a proper reading of the law, and various public policy reasons. Regrettably, the Court has disagreed, upholding N.G.’s conviction.

The Court’s decision underscores the importance of the federal government bringing forward legislative changes to the Criminal Code to prevent the continued misuse of criminal charges that are contrary to science, lead to unjust convictions and ultimately undermine public health.

The decisions of the trial judge and the Court of Appeal were based on the 2012 Supreme Court of Canada decision in R. v. Mabior. Both courts said they were bound to follow that decision and saw insufficient reason to depart from it. That case has often been interpreted as saying that the law always requires both a low viral load and condom use in order to negate a “realistic possibility of HIV transmission,” which the Supreme Court declared is the legal threshold triggering a duty to disclose. However, the Supreme Court was not so categorical in its decision, and recognized that the law could adapt in the future.

It is wrong to insist that both a low viral load (i.e., the presence of HIV in significantly suppressed in the body) and condom use are required in order to negate a realistic possibility of HIV transmission.  Since the Supreme Court’s decision eight years ago, there have been cases in which, based on the scientific evidence before them, courts have concluded that a low viral load on its own negates a realistic possibility of transmission. This recognizes the global consensus that a person with a suppressed viral load cannot sexually transmit HIV — in other words, “Undetectable = Untransmittable.”

It’s time for the law to catch up with the science and recognize that condoms can also negate a realistic possibility of transmission.

The consensus of scientific experts across Canada and around the world, as noted in the original 2014 consensus statement of Canadian scientists and the more recent 2018 international Expert Consensus Statement, is that “correct use of a condom during sex means HIV transmission is not possible.” One court in Canada has already recognized this, acquitting on the basis of condom use alone (in a 2018 Nova Scotia case), meaning there are inconsistent court decisions in different parts of the country.

The Attorney General of Canada and Department of Justice have previously recognized in 2017 that the “overcriminalization of HIV” is an ongoing problem, contributing to HIV stigma and undermining testing, treatment and public health. Based on a scientific and legal review, in 2018 the Attorney General issued a directive to federal prosecutors that there should generally be no prosecution for alleged HIV non-disclosure in the case of condom use, because there is likely no realistic possibility of transmission. (This directive applies only in the territories, not the provinces.)

Continuing to criminalize people living with HIV — even when condoms are used — is also discriminatory and an overly broad application of the criminal law that is harmful and bad for public health. The injustice is compounded by the severe consequences of a conviction for aggravated sexual assault, including years in prison, mandatory lifetime designation as a sex offender and, in some cases, deportation. These are grossly disproportionate penalties for a sexual encounter that is otherwise consensual, and in which a person has taken a highly effective precaution that means either zero risk or at most a negligible risk of HIV transmission. The burden of overly broad use of the criminal law also falls disproportionately on Black, Indigenous and gay communities, as recognized by Justice Canada in its 2017 report.

In June of last year, the House of Commons Standing Committee on Justice and Human Rights recognized there is a need for reforms to the Criminal Code that would end the use of sexual assault charges to deal with HIV non-disclosure and limit any criminalization to cases of actual transmission. The ruling from the Ontario Court of Appeal means that it is all the more urgent that the government act on these calls for change and put an end, through legislative amendments, to the unscientific and unjust use of the criminal law.

For more information:

Canada: British Columbia’s appeal court orders new trial for man accused of reneging on promise to wear condom

Sex with condom is legally different from sex without, B.C. court rules in consent-case appeal

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 jury indicted 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.

2016-0903. State v. Batista, Slip Opinion No. 2017-Ohio-8304.

 View oral argument video of this case.

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.

Spain does not have an HIV-specific criminal law – nor a law requiring HIV disclosure – instead relying on general criminal laws relating to injury to prosecute potential or perceived HIV exposure, or alleged HIV transmission.

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 case

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.)

Evidence

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.

Now, after several weeks of seeing no HIV-related criminal cases, this past week we have, unfortunately, documented two further HIV-related arrests – a woman in the Rostov region of Russia is accused of passing on HIV to her husband and faces five years in prison; and a man in Louisiana in the United States was arrested after allegedly spitting on an officer and then charged with “intentional exposure to the AIDS virus” after he informed medical staff of his HIV-positive status.

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.

In Spain, the Supreme Court upheld the acquittal of a man accused of criminal HIV transmission noting that evidence pointed to the complainant being aware of his status prior to agreeing to condomless sex, meaning there was consent. 

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 Times of Malta reports:

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.

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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.
 
Other views
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.

Tres razones llevaron este miércoles a la Corte Constitucional a tumbar el artículo 411 de la ley 599 del 2000 que penalizaba la propagación del Virus de Inmunodeficiencia Adquirida, VIH, origen al sida, y la Hepatitis B.

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.

 

Otras voces

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

Following a Constitutional challenge initiated in February 2016 by the Multisectoral Group on HIV / AIDS and STIs of Veracruz and the National Commission on Human Rights, and supported by HIV JUSTICE WORLDWIDE, Mexico’s Supreme Court of Justice yesterday found by eight votes (out of 11) that the amendment to Article 158 of the Penal Code of the State of Veracruz to be invalid as it violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.

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’…

Additionally, Letra S reports,

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.

 

Background

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.

The amendment, proposed by the deputy Mónica Robles Barajas of the Green Ecologist Party of Mexico, said the legislation was aimed at protecting women who can be infected by their husbands. “It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

On February 16, 2016, the National Human Rights Commission responded to the request of the Multisectoral Group on HIV / AIDS and STIs of the state of Veracruz and other civil society organizations, and filed an action of unconstitutionality against the reform in the Supreme Court of Justice of the Nation, which it said does not fulfill its objective of preventing the transmission of sexual infections to women and girls, but rather creates discrimination of people living with HIV and other STIs.

In October 2016, following a press conference at the National Commission on Human Rights (pictured above) that generated a great deal of media coverage, including a TV report, HIV JUSTICE WORLDWIDE delivered a letter to the Mexican Supreme Court highlighting that a law such as that of Veracruz does not protect women against HIV but rather increases their risk and places women living with HIV, especially those in positions vulnerable and abusive relationships, at disproportionate risk of both proseuction and violence.

In October 2017, the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition where a new Mexican Network against HIV Criminalisation was established.

The Network issued a Statement yesterday which concluded:

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.

 

Edwin Bernard (HIV JUSTICE WORLDWIDE) and Patricia Ponce (Grupo Multisectorial Veracruz) presenting the letter to Supreme Court of the Nation, Mexico City.
Edwin Bernard (HIV JUSTICE WORLDWIDE) and Patricia Ponce (Grupo Multisectorial Veracruz) presenting the letter to Supreme Court of the Nation, Mexico City.

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[1] 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), [2] the UN Special Rapporteur on the right to health,[3]  the Global Commission on HIV and the Law[4]  and the the World Health Organization[5],  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.” [6]

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.[7] 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[8] and is therefore no different from someone who is HIV-negative.

Moreover, there is growing body of evidence[9] 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.[10]

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. [11] 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. [12]

Finally, there is evidence[13] 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.

Yours faithfully,

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).

[1] 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.

[2] 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.

[3] 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.

[4] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.

[5] WHO. Sexual health, human rights and the law. June 2015.

[6] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.

[7] UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.

[8] 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.

[9]op cit. Global Commission on HIV and the Law.

[10] Athena Network. 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. 2009.

[11] O’Byrne P et al. HIV criminal prosecutions and public health: an examination of the empirical research. Med Humanities 2013;39:85-90 doi:10.1136/medhum-2013-010366

[12]Ibid.

[13]Op cit. Global Commission on HIV and the Law.