Is one person to blame if another gets a sexually transmissible infection (STI)? In most Australian states, if you have certain STIs, you have a legal responsibility to notify your potential sexual partners.
The NSW government last week passed an amendment to the state’s Public Health Act that increased the associated penalties by doubling the maximum fines and adding potential jail time.
A person who knows that he or she has a notifiable disease, or a scheduled medical condition, that is sexually transmissible is required to take reasonable precautions against spreading the disease or condition.
Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
In addition to increasing potential penalties, the amendment removed an earlier provision mandating disclosure of STI status, replacing it instead with the need for “reasonable precautions”.
This is a positive change for the law that reflects the best available research on STIs and transmission. Yet its coupling with increased penalties has sent a mixed message about sexual health in the state.
Further, the idea that punishing STI exposure or transmission will decrease rates of infection is not supported by global research on HIV, and there is no reason to believe this would be any different for other STIs.
Laws across Australia
Health law is pretty complex and mainly left up to each state and territory. Generally speaking, across Australia you risk some kind of punishment for knowingly infecting another person with what are often referred to as “notifiable diseases”. This list covers a range of infections but STIs include chlamydia, gonorrhoea, syphilis, HIV, shigella, donovanosis, and hepatitis a, b and c.
In some states, notably New South Wales, Tasmania and Queensland, it’s an offence just to knowingly expose someone to an infection, even if they don’t actually become infected. While in other states, like Victoria and South Australia, health acts do not specify penalties for exposure or transmission, referring instead to the respective crime acts. For the most part, curable STIs do not rank as serious enough for criminal prosecution.
What is unique about NSW is that it uses the Public Health Act to single out STIs and describe specific punishments above and beyond other infections.
Although laws in NSW seem unusually fixated on STIs, the move away from mandated disclosure in favour of “reasonable precautions” is a positive step. While disclosure may seem sensible on the surface, it’s not the most effective at preventing transmission. This is because disclosure requires that someone be aware of an infection and many people with an STI don’t realise they are infected. For example, it’s estimated nearly three quarters of chlamydia infections in young people in Australia go undiagnosed every year. Relying on disclosure can, therefore, give people a false sense of security.
There are other more effective strategies than disclosure for protecting someone from infection. With HIV, for example, successful treatment means the risks of transmitting the virus to another person are virtually nonexistent. Under the amended NSW law, treatment could quite rightly be considered a reasonable precaution to avoid transmitting HIV.
But the state’s Public Health Act is relevant to all STIs, not just HIV. For other infections, it’s less clear what precautions might be seen as reasonable. Condoms can offer protection from some infections, but not all, and they are rarely used for oral sex. Given more and more chlamydia and gonorrhoea cases are identified in the throat, this is potentially problematic.
Punishment doesn’t help
Every year, there are over 100,000 STI diagnoses across Australia, the vast majority of which can be cured using antibiotics. Ultimately, public health initiatives aim to reduce new cases and lower the overall amount of infection.
It’s been suggested by public health experts that criminalising transmission can undermine public health efforts by reinforcing stigma and causing people to delay accessing testing, treatment and care.
And in a review of legal conditions around the world, researchers found that there was no link between laws criminalising HIV transmission and lower infection rates. The review also found such laws disproportionately impacted those who may experience marginalisation, such as young people and women.
In reality, situations where an individual recklessly or wilfully places another at risk of an STI are incredibly rare and health officials have many options besides punishment.
As part of their core work, doctors and clinics counsel on and work with people to prevent onward transmission, and in some cases public health orders can be used to compel people to, among other actions, attend counselling and refrain from activities that might spread an infection. In the most extreme situations, criminal charges can be brought on the basis of grievous bodily harm.
Overall, a special and punitive focus to STIs risks further entrenching stigma and undermining the Act’s intent, which is to manage and reduce infection. If there is any hope of reducing STIs in Australia, laws must aim to foster an environment where people feel comfortable, able and willing to get tested and engaged with their sexual health.
While it seems unlikely a rush to prosecute those who expose others to STIs will spring up from this amendment, the law as it is currently written leaves open that rather serious possibility. In NSW and across Australia, health law consistently places the burden of prevention on one partner. In an ideal world, all parties to a sexual encounter take “reasonable precautions” to protect themselves and each other from infection.
Canada: COCQ-SIDA to request a moratorium on criminal prosecutions of HIV non-disclosure in Quebec
Moratorium requested on prosecutions for non-disclosure of HIV (Translation of article in French below)
The Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA) will ask the minister of Justice of Quebec on Tuesday to impose a moratorium on the use of criminal prosecutions against people living with HIV who do not disclose their medical status to their sexual partner, learned The Duty.
This moratorium is called ” right now “, and this, until the end of the consultation undertaken by the federal government in order to reform this regulation. “We hope to give more information on our progress at the end of the year “, has written for Le Devoir a spokesman for the federal department of Justice on Monday evening about this.
Currently, the supreme Court ruled that an HIV-positive person must disclose his/her HIV status to his partner prior to any sexual relationship, unless you meet two requirements, either wear a condom and have a low viral load or undetectable.
“The scientific studies show that the viral load decreases drastically [with the most recent treatments], to a point where HIV is no longer transmitted“, explains a lawyer at COCQ-SIDA, Liz Lacharpagne. That is why the coalition believes that only one of the two criteria should be taken into account.
Since 2010, the COCQ-AIDS has multiplied advances to review the regulation, considered as being discriminatory and outdated, but without success. “The guidelines we asked for were never adopted,” said Ms. Lacharpagne.
“Currently, people living with HIV are the subject of allegations of severe sexual abuse […] even in the absence of intent to cause harm, even when HIV is not passed to the partner, and even when the risk of transmission is negligible, or even zero,” writes COCQ-SIDA in a press release that will be published on Tuesday.
These criminal prosecutions contribute to stigmatize people living with HIV, states the coalition. Ms. Lacharpagne cites the example of high-profile cases where accused persons have been identified publicly as a sex offender. “It does not give a nice image of these people.”
“There is a confusion between the fact of not disclosing [their HIV status] and a sexual assault “, she says.
More lawsuits
COCQ-SIDA is particularly concerned since the beginning of the year, because it has observed a substantial increase in prosecutions for non-disclosure in Quebec. The Devoir reported on this situation in August.
Faced with the refusal of the minister of Justice of Quebec, Stéphanie Vallée, to meet with COCQ-SIDA, and in the context of the increase in lawsuits, the coalition believes that they has no other recourse but to ask for a moratorium. “It is at a political level,” explains Ms. Lacharpagne.
The cabinet of Mrs Valley did not tell le Devoir if it will impose or not such a moratorium. The case depends on the federal government, has reminded the press officer for the minister, Isabelle Married St-Onge, in a reply sent by e-mail.
“Quebec is favourable to the minimization of the stigma of people living with HIV and focuses on the approach set out by the jurisprudence of the supreme Court which provides for a fair balance between the protection of society, victims and the respect for the dignity of people living with HIV “, she adds.
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La Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA) demandera mardi à la ministre de la Justice du Québec d’imposer un moratoire sur les poursuites criminelles contre les personnes vivant avec le VIH qui ne divulguent pas leur statut médical à leur partenaire sexuel, a appris Le Devoir.
Ce moratoire est demandé « dès maintenant », et ce, jusqu’à l’issue de la consultation menée par le gouvernement fédéral dans le but de réformer cette réglementation. « Nous espérons donner de plus amples renseignements sur nos progrès à la fin de l’année », a écrit au Devoir un porte-parole du ministère fédéral de la Justice lundi soir à ce sujet.
Actuellement, la Cour suprême établit qu’une personne séropositive doit divulguer son statut sérologique à son partenaire avant toute relation sexuelle, à moins de remplir deux exigences, soit porter un condom et avoir une charge virale faible ou indétectable.
« Les études scientifiques montrent que la charge virale diminue de façon drastique [avec les plus récents traitements], à un point où le VIH ne se transmet plus », explique l’avocate de la COCQ-SIDA, Liz Lacharpagne. C’est pourquoi la coalition estime qu’un seul des deux critères devrait être pris en compte.
Depuis 2010, la COCQ-SIDA multiplie les démarches afin de revoir la réglementation, jugée discriminatoire et désuète, mais sans succès. « Les directives qu’on demandait n’ont jamais été adoptées », déplore Mme Lacharpagne.
« Actuellement, des personnes vivant avec le VIH font l’objet d’accusations d’agressions sexuelles graves […] même en l’absence d’intention de causer un préjudice, même lorsque le VIH n’est pas transmis au partenaire et même lorsque le risque de transmission est négligeable, voire nul », écrit la COCQ-SIDA dans un communiqué qui sera publié mardi.
Ces poursuites au criminel contribuent à stigmatiser davantage les personnes séropositives, soutient la coalition. Mme Lacharpagne cite en exemple des cas médiatisés où des personnes accusées ont été identifiées publiquement comme des délinquants sexuels. « Ça ne donne pas une belle image de ces personnes ».
«Il y a une confusion entre le fait de ne pas dévoiler [son statut sérologique] et une agression sexuelle », déplore-t-elle.
Devant le refus de la ministre de la Justice du Québec, Stéphanie Vallée, de rencontrer la COCQ-SIDA, et dans le contexte d’augmentation des poursuites, la coalition estime qu’elle n’a d’autre recours que de demander un moratoire. « C’est à un niveau politique », explique Mme Lacharpagne.
Le cabinet de Mme Vallée n’a pas précisé au Devoir s’il imposera ou non un tel moratoire. Le dossier relève du gouvernement fédéral, a rappelé l’attachée de presse de la ministre, Isabelle Marier St-Onge, dans une réponse transmise par courriel.
« Le Québec est favorable à la minimisation de la stigmatisation des personnes atteintes du VIH et privilégie l’approche définie par la jurisprudence de la Cour suprême qui prévoit un juste équilibre entre la protection de la société, des victimes et le respect de la dignité des personnes atteintes du VIH », ajoute-t-elle.
FCAA Philanthopy Summit: Growing the Global Movement to End Criminalization (Funders Concerned About AIDS, 2017)
This session aimed at philanthropic funders discussed the growing global movement to end HIV criminalization – overly broad and/or vague criminal laws, that unjustly regulate, control, and/or punish people living with HIV solely based on their HIV status. The panel’s participants exemplify the uniqueness of the Robert Carr Fund model of incentivizing collaborative and joint efforts of networks across movements – who join into consortia of, for example, people living with HIV and human rights defenders/lawyers – and the model of linking activities at global, regional and national levels, which catalyzes a more aligned and impactful effect in resisting and fighting HIV criminalization.
Moderator: Sergey Votyagov, Robert Carr Fund for Civil Society Networks (RCF)
Introduction: Luisa Cabal, Joint United Nations Programme on HIV/AIDS (UNAIDS)
Panelists:
• Edwin Bernard, HIV Justice Network (HJN)
• Laurel Sprague, Global Network of People Living with HIV (GNP+)
• Lynette Mabote, AIDS and Rights Alliance for Southern Africa (ARASA)
Canada: Ministers discussed HIV non-disclosure and agreed to collaborate on possible next steps
Justice and Public Safety Ministers conclude two days of meetings on shared justice and security priorities
VANCOUVER, Sept. 15, 2017 /CNW/ – Canadian Intergovernmental Conference Secretariat
Today, federal, provincial and territorial (FPT) ministers concluded two days of constructive discussions on justice and public safety priorities that are important to Canadians.
The meeting, held on the traditional territories of the Musqueam, Squamish and Tsleil-Waututh First Nations, opened with a welcome from a First Nation Elder from Tsleil-Waututh.
Addressing delays in the criminal justice system
Ministers held productive talks on reducing delays in the criminal justice system, including progress on key legislative reform priorities. Ministers agreed on the need for urgent and bold reforms to reduce these delays. They discussed reforms to the Criminal Code’s mandatory minimum penalty provisions. Ministers supported improving the bail system to make it more efficient, while protecting public safety and considering the circumstances of Indigenous accused and accused persons from vulnerable populations. They looked at how to more efficiently and effectively address administration of justice offences, such as breaches of bail conditions, as these offences often lead to additional charges for vulnerable people. Ministers also considered how the reclassification of offences could provide greater flexibility to use simpler and faster court processes. Also highlighted was the need for reforms to the availability of preliminary inquiries in the criminal justice system, as they can contribute to court delays and their functions can be met through other mechanisms. Ministers recognized the importance of judicial case management in reducing delays and agreed on the need for legislative enhancements.
Ensuring our national security
PT Ministers were briefed on Bill C-59, the proposed National Security Act, 2017, and provided views on how the federal government can work with provinces and territories to keep Canadians safe, while safeguarding Charter rights and freedoms. The Government of Canada signaled its openness to hearing further views as the legislation proceeds through Parliament.
Preparing for the cannabis and impaired driving legislation and implementation
Ministers agreed that the legalization and regulation of cannabis must be guided by the objectives of protecting the health and safety of all Canadians, particularly young people.
Ministers discussed Bill C-45, the proposed federal Cannabis Act, which would create a new legal framework for controlling the production, distribution and possession of cannabis in Canada. Ministers shared their views on the implementation of the regulatory regime for cannabis use. PT Ministers noted that there are significant administrative, regulatory, public education, officer training and law enforcement issues, including those related to home cultivation, which need to be addressed. These entail significant costs for provincial and territorial governments. They urged the federal government, as the government advancing this policy change, to invest the appropriate resources to support cannabis legalization. The Government of Canada has committed up to $274 million for this purpose. PT Ministers also noted that there are challenges associated with the federal government’s proposed implementation by July 2018 and that continued federal engagement and information sharing will be required to manage this transition.
The implementation of the federal government’s impaired driving legislation, Bill C-46, was also raised. This legislation proposes new laws and penalties to address those who drive while impaired by drugs or alcohol. Ministers also discussed the federal consultations on lowering the criminal blood alcohol concentration to 50 mg of alcohol per 100 ml of blood; specifically, Ministers agreed to complete work, under the leadership of the federal government, on the design of a model law regarding the creation of administrative enforcement regimes for alcohol and drug impaired driving.
Federal ministers provided an update on cannabis and impaired driving legislative initiatives, planned federal public awareness efforts, and federal funding for law enforcement in support of cannabis legalization and regulation.
Other priority items
Ministers discussed HIV non-disclosure. They re-iterated the importance of an appropriate criminal justice system response to HIV transmission and exposure cases involving people living with HIV who do not disclose their status to sexual partners. FPT ministers agreed to collaborate on possible next steps on this important issue in the coming months.
Ministers discussed initiatives underway to help improve how the criminal justice system responds to sexual assault in Canada, including steps to improve data collection and shared police best practices.
Ministers discussed over-representation of marginalized people in the criminal justice system and identified possible coordinated actions regarding metrics, information sharing, restorative justice, bail and remand.
Ministers also discussed the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples.
Working together to address public safety and justice issues for Indigenous communities
Ministers also heard from representatives of the Assembly of First Nations, the Native Women’s Association of Canada, the Congress of Aboriginal Peoples and the Women of the Métis Nation regarding justice and public safety challenges for Indigenous communities. Key discussion items were: delays in the criminal justice system, restorative justice, gaps in services for Indigenous people involved with the criminal justice system, the Truth and Reconciliation Commission of Canada’s Calls to Action, violence against Indigenous women and girls, and Indigenous policing.
Quotes
“I am pleased with the substantive discussions we had and the progress we have made on a number of priorities, from legislative reform and initiatives to address delays in the criminal justice system to preparing for a new regulatory framework for cannabis legalization and strengthened impaired driving laws. In the spirit of a renewed relationship with Indigenous peoples, we had the opportunity to engage with representatives of Indigenous organizations on the unique interface between the justice system and Indigenous people.”
Jody Wilson-Raybould
Minister of Justice and Attorney General of Canada
“These meetings are a valuable opportunity for Ministers to discuss and collaborate on issues affecting the safety and security of all Canadians. I value the input and perspectives brought forward by my provincial and territorial colleagues and will take them into consideration when advancing Government of Canada initiatives. At the end of the day, we’re all working for Canadians.”
Ralph Goodale
Minister of Public Safety and Emergency Preparedness
“Meeting with colleagues from across the country, and with representatives from National Indigenous Organizations, provides a tremendous opportunity to learn from one other and to forge a stronger justice and public safety sector. These meetings reinforced British Columbia’s commitment to develop a strategy to improve how Indigenous people interact with, and are treated in, the justice system, and advanced the dialogue needed to address critical justice issues, such as delays in the criminal justice system.”
David Eby
Attorney General of British Columbia
“British Columbia was pleased to provide a venue for federal, provincial and territorial colleagues this week to engage in important debate, share ideas and look at key issues of concern for all jurisdictions, such as cannabis regulation and impaired driving. This provides a great opportunity to create common understanding to help us move forward on matters critical to public safety and the justice sector.”
Mike Farnworth
Minister of Public Safety and Solicitor General of British Columbia
“Justice is a shared responsibility and this meeting presented a great opportunity to work together on a wide range of sensitive and complex issues, including cannabis and impaired driving legislation. We are looking forward to continued collaboration with our justice partners across Canada as we strive to increase access to justice on multiple fronts, including through improving the efficiency of the criminal justice system and addressing case lead times. Changes are needed, and they must be done in a thoughtful manner, on a principled basis with a thorough understanding of how they will impact the people we serve.”
Kathleen Ganley
Minister of Justice and Solicitor General of Alberta
For further information: Kathleen Davis, Office of the Minister of Justice Canada, (613) 992-4621; Media Relations, Department of Justice Canada, (613) 957-4207; Scott Bardsley, Office of the Minister of Public Safety and Emergency Preparedness, (613) 998-5681; Media Relations Office, Public Safety Canada, (613) 991-0657, media@ps-sp.gc.ca
PROPOSED SEXUAL HEALTH LAW REFORMS IN NSW SLAMMED BY EXPERTS
The reforms would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The New South Wales government has introduced a bill that would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The Public Health Amendment (Review) Bill 2017seeks to make changes to Section 79 of the Public Health Act 2010, removing the existing law around disclosure of HIV, but replacing it with a new offence meaning anyone who knows they have an STI could be charged for not taking undefined “reasonable precautions”.
Sexual health organisation ACON has criticised the bill, saying it is at odds with good public health practice.
“Given that most of the STIs that would be covered by this proposal are treatable, it is our position that the new offence created in s79 introduces unprecedented, unjustified, and disproportionate penalties and runs counter to good public health processes,” ACON said in a statement on its website.
“This new offence could deter people from sexual health testing and contact tracing. The evidence indicates that HIV and other STIs are more likely to be transmitted via someone who has undiagnosed infection.”
ACON said that STIs are a health issue, not a criminal issue, and called on concerned members of the public to contact NSW Minister for Health Brad Hazzard.
Nic Holas of HIV organisation The Institute of Many agreed that the proposed new law is worrying.
“Those of us in the HIV-positive community are very concerned about the proposed changes to the Public Health Act,” he said.
“It used to be that you had to disclose your HIV status or face some kind of penalty, potentially. Last year the New South Wales government recognised that that kind of forced disclosure put all the responsibility on HIV-positive people, which was unfair and ultimately unhelpful in ending HIV.
“But now it seems what they’re trying to do is remove that—which is really great—and introduce punitive charges on anyone who’s HIV-positive or anyone with an STI if they don’t take reasonable precautions.”
Holas called the proposed law “really extreme” and said it could deter testing and result in worse public health outcomes.
“That’s extremely concerning for us, because the World Health Organisation says that those sorts of extreme punitive measures do the opposite of driving down rates of HIV and STIs, and send them upwards,” he said.
Holas said there is already provision under the law for a person intentionally spreading an STI to be charged with grievous bodily harm. He called for the proposed new offence to be scrapped.
“What’s far more important to ending HIV and the current high rates of STIs is to encourage testing and treatment, not heavy prison sentences,” he said.
Canada: Ontario leads the world in the over-criminalisation of HIV non-disclosure
Ontario a ‘world leader’ in unjustly prosecuting people living with HIV, advocates say
HIV-positive individuals being ‘criminalized’ when it comes to disclosing their status to sexual partners, by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission, critics argue.
It was around Christmas in 2008 when Chad Clarke said he got a phone call from a former partner screaming at him that he had given her HIV.
The next three years would see Clarke arrested for aggravated sexual assault, denied bail twice, pleading guilty to avoid a longer sentence, sent to prison where he was placed in protective custody, and put on the national sex offender registry for life.
The charge related to a failure to disclose his HIV status, although Clarke said that at the time he did not believe he was HIV-positive. Although he had tested positive in 2004, he said he had believed a second test showed he was negative. He said he’s been on medication, with an undetectable viral load, since 2008.
“HIV is not a crime,” Clarke, 45, told the Star in a recent interview. “It’s a public health issue. Isn’t health supposed to be key?”
People living with HIV in Canada risk an aggravated sexual assault charge and prison time if they don’t disclose their status to their sexual partner, unless a condom is used and the individual has a low viral load, which refers to the amount of the HIV virus in their blood.
Advocates have long complained of HIV-positive individuals being unjustly prosecuted by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission.
It’s an issue that is now on the agenda of federal Justice Minister Jody Wilson-Raybould, who has referred to an “over-criminalization of HIV non-disclosure” and is looking at introducing changes this year. But critics say the Ontario government has so far failed to match the federal government’s efforts in what remains a complex and sensitive area of the law.
“There are some serious injustices taking place right now,” said Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario. “People living with HIV are being criminalized for engaging in behaviours that should not be criminal, and to make it worse, people living with HIV are being charged, prosecuted and convicted of aggravated sexual assault.”
It wasn’t long ago when the media proclaimed AIDS as the “gay plague” that carried a death sentence, but the stigma around HIV/AIDS has hardly disappeared, as advocates point to the continued criminal prosecution of those who don’t disclose their status to their sexual partners as one example.
At least 184 people in 200 cases have been charged in relation to HIV non-disclosure since 1989, according to a report published this year by the Canadian HIV/AIDS Legal Network. In Ontario, at least nine cases have been taken to court since 2012.
“When used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV,” according to a 2014 consensus statement published by a number of leading Canadian HIV/AIDS medical experts. As well, because of advances in medication that can keep a person’s viral load low or undetectable, advocates say that the risks of transmission are far lower than they once were, regardless of condom use.
Therefore, they say, HIV-positive people should not be required to be placed in the delicate position of disclosing their status, unless there is intention to transmit HIV as well as actual transmission of HIV.
“In the best of all worlds, that would be the right thing do,” Toronto criminal defence lawyer Cynthia Fromstein, who has represented many HIV-positive individuals, said of a person disclosing one’s status.
“However, people have faced bad reactions, people have faced violent reactions, to disclosing their HIV status. People are also just people, they face rejection, which is hard, and particularly if you know that you in fact don’t pose a risk to someone, then I think people don’t want to put themselves in that position.”
Matters are further complicated by the fact that Ontario has no official prosecutorial guidelines to help guide Crown attorneys in their approach to these cases, and to decide whether to even bring one to court.
It gets even more complicated when you consider the Supreme Court’s last pronouncement on the topic in 2012, where it was found that a person must disclose if there is a “realistic possibility of transmission,” a phrase that has left Crown attorneys and judges differing on just what that means.
The federal government has been studying the issue since last year, and it’s expected to be discussed at the upcoming federal, provincial and territorial justice ministers’ meeting in Vancouver this week.
The gathering comes almost a year after Wilson-Raybould announced last Dec. 1, World AIDS Day, that she intended to look into the criminal justice system’s handling of HIV non-disclosure cases and work on the issue with her provincial and territorial counterparts.
“HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition,” she said in a statement at the time.
“Still, the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”
The Criminal Code contains no laws specifically related to HIV non-disclosure, but the offence of aggravated sexual assault — reserved for the most egregious sexual assaults — is typically laid in such cases, and almost always carries prison time following conviction.
HIV/AIDS organizations do not oppose prosecutions in the rare cases where an individual had the intent to transmit the HIV virus, although whether the charge should still be aggravated sexual assault remains a matter of discussion.
While the federal government is responsible for amending the Criminal Code, it is the responsibility of provincial Crown attorneys to apply the law, and use their discretion when deciding whether to prosecute a particular offence.
In a statement sent to the Star last week, the federal department of justice said the government hopes to provide an update on its work on the issue by the end of the year. But it also reiterated that enforcement of the laws is very much a provincial matter.
“The work currently being undertaken with provincial partners will allow each jurisdiction to make informed decisions about how to address prosecutorial and charging practices within their area of responsibility,” the statement said.
Advocates have demanded that Ontario Attorney General Yasir Naqvi order a moratorium on the prosecution of non-disclosure cases — except in cases where intentional transmission of the virus is alleged — until the federal government implements its plan, which may include prosecutorial guidelines that the provinces could choose to adopt.
Their pleas have so far proven to be unsuccessful, as Crown attorneys in Ontario continue to bring non-disclosure cases — even where the virus was not transmitted — to court.
“The intolerable fact remains that Ontario continues to be a world leader in unjustly prosecuting people with HIV,” the Ontario Working Group on Criminal Law and HIV Exposure wrote in an April letter to Naqvi.
“The pattern of zealous, overly broad prosecution of people living with HIV in Ontario is the result of deliberate choices, both by individual prosecutors and (the Ministry of the Attorney General).”
Naqvi’s office said last week that he did meet with the working group last year, and that during the meeting, “the attorney general reiterated his commitment to work with the federal government as they review the way our justice system handles HIV-related cases.”
The discussion between advocacy groups and successive attorneys general in Ontario on non-disclosure prosecutions have been described as more or less one-sided, with very little progress being made on the government’s side.
Several years ago, the government did propose prosecutorial guidelines for non-disclosure cases, but the three outside experts allowed to read them — and who are also barred from discussing their contents — said they were so bad they told the ministry that no guidelines would be a better option.
“I don’t think it would be fair to say that we were consulted in the drafting of anything,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, who was one of the three experts, along with Peck and criminal defence lawyer Jonathan Shime, to see the draft.
“We had repeatedly put forward our ideas about what we thought they should be about.”
Among those suggestions: an acknowledgement that an undetectable viral load alone means there is no realistic possibility of transmission, regardless of condom use.
What prosecutors do have access to is a so-called “practical guide” prepared in 2010 by Hamilton Crown attorney Karen Shea, who successfully prosecuted Johnson Aziga for first-degree murder, an infamous 2009 case in which two of the women infected with HIV by Aziga later died from AIDS. Aziga’s trial heard that he had known since 1996 that he was HIV-positive, but did not start taking medication until 2005, two years after his arrest.
Shea’s 72-page document, which the Ministry of the Attorney General fought for years to keep secret after receiving a freedom of information request from Toronto lawyer Marcus McCann, covers everything from the elements the Crown must prove to secure a conviction, to the kind of information that should be sought on an HIV-positive individual from public health officials.
McCann expressed concern that the guide could have a chilling effect on individuals seeking help from public health authorities, as the guide encourages Crowns to seek information on accused persons from public health to use in court.
Indeed, HIV test results and other information gleaned from public health have been put on the record in court by the Crown at bail hearings and trials in non-disclosure cases.
The provincial government has previously acknowledged that while it’s not an official policy or guideline, Shea’s guide has been used to assist other Crown attorneys, although it’s unclear which parts are still consulted given that the science and case law have evolved since 2010.
“Many roads lead to Karen Shea. I don’t think she’s the only destination, but she is clearly on the turnpike as one of those stops,” said Elliott at the Canadian HIV/AIDS Legal Network.
Shea declined to comment to the Star.
Crown attorneys take into account scientific developments and new case law when considering to prosecute a case, said a spokesperson for the Ministry of the Attorney General, who confirmed that the ministry’s criminal law division has a “group of experienced prosecutors who are available to provide advice on HIV exposure cases,” but didn’t say who is part of that group.
The last time the Supreme Court ruled on HIV non-disclosure, in a 2012 case known as R v. Mabior, it found that disclosure was not necessary if the individual had a low viral load and a condom was used.
But Chief Justice Beverley McLachlin, writing for a unanimous court, also said that the double requirement “does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.”
The meaning of that statement has played out in Canadian courtrooms since 2012, including in a recent Brantford non-disclosure case, where the Crown argued that Mabior requires low viral load andcondom use to avoid disclosure obligations, but the judge found otherwise.
The case involved a man, C.B., who has a low viral load but did not disclose to two women before having condomless sex. He was subsequently charged with two counts of aggravated sexual assault. Neither complainant was infected with HIV.
The trial took place in April, four months after Wilson-Raybould announced the federal government would target the over-criminalization of HIV non-disclosure.
Testifying for the defence, Dr. Philippe El-Helou, director of the HIV Clinic at McMaster University, said that in all of his years treating HIV patients, “he has not seen a transmission occur from a carrier who has an undetectable viral load,” Ontario Court Justice Robert Gee wrote in his decision.
The judge acquitted C.B. of all charges.
“The question becomes: Is condom use the only way to raise a reasonable doubt about the risk of transmission in a person with a low viral load or, if at the time Mabior was decided in 2012 it was the only way, has the science advanced to the point where it no longer is?” Gee wrote in a ruling released last month.
“The defence takes the position that the Supreme Court’s decision was not intended to establish an absolute and fixed rule that a low viral load and condom use was the only way to raise a reasonable doubt about the possibility of transmission.”
Gee sided with the defence, accepting El-Helou’s evidence that given C.B.’s undetectable viral load, “the risk of transmission in this case was as close to zero as can be measured.”
It is exactly the kind of case that advocates have long demanded be kept out of courtrooms in the first place, and why they hope sound prosecutorial guidelines would be of great help to Crown attorneys.
Chad Clarke has become an outspoken advocate since leaving prison in 2011, marching in the streets and speaking at numerous HIV/AIDS conferences. What he would most like to see is his name taken off the sex offenders’ registry.
He said he has post-traumatic stress disorder that goes “through the roof” every year when he has to sign in with police, one of the conditions of being on the registry. He lives on a fixed income, applying for jobs is difficult, and family relationships are strained.
“If you want to keep the charges against me, I’ll live with that, but take me off that damn sex offenders’ registry, because every day that I look at myself in the mirror, I see myself as a sex offender, and that’s not cool,” he said.
“I would like to personally see that instead of sticking this person in jail, you get them a point of care, you get them on medication right away, you get them mental health care, because trust me, mental health (issues) will go with you the rest of your life if you have HIV.”
US: Radio interview with Catherine Hanssens, founder of the Center for HIV Law Policy, on the obsolescence of HIV criminalisation laws in the US
HIV Criminalization Laws Not Keeping Pace With Research, Treatment
In many states across the country, one can be charged with a felony for not disclosing their HIV status. However, recent studies show that, when individuals are properly treated, HIV transmissions from sexual encounters can range from zero to 1.56 percent. Why aren’t HIV criminalization laws in sync with the realities of HIV treatment and prevention? Catherine Hanssens, founder of the Center for HIV Law Policy, weighs in. This segment is hosted by Todd Zwillich.
California Assembly votes to repeal HIV criminalization laws
ACRAMENTO, CALIF.
The California Assembly voted Thursday to reduce the penalty for intentionally exposing someone to HIV from a felony to a misdemeanor.
Existing laws discriminate against people with HIV, the virus that causes the immune system-weakening disease AIDS, supporters of the change said.
The bill, passed 44-13, would treat HIV like other communicable diseases under California law.
It requires final Senate approval before it can go to Gov. Jerry Brown.
Currently, if a person who knows they are infected with HIV has unprotected sex without telling their partner they have the virus, they can be convicted of a felony and face years of jail time.
Intentional transmission of any other communicable disease, even a potentially deadly one like hepatitis, is a misdemeanor.
The bill, SB239, would also repeal laws imposing harsher penalties for prostitution if the offender has HIV.
Modern medical treatment has made HIV a much less devastating disease than it was when the so-called HIV-criminalization laws were passed in the 1980s and 1990s, said Assemblyman Todd Gloria, a San Diego Democrat. The laws are relics of the decades-old AIDS scare, he said.
“In California, people living with HIV can be charged with a felony and imprisoned based almost entirely on their status,” he said. “This is because our state has outdated and discriminatory laws.”
Between 1988 and 2014, at least 800 people were arrested, charged or otherwise came into contact with the criminal justice system related to their HIV status, according to a study conducted at the University of California, Los Angeles. The study found “HIV criminalization” laws disproportionately affected women and people of color.
Republican Assemblyman Travis Allen of Huntington Beach opposes the bill and said it would endanger people.
HIV Crime Laws: Historical Relics Or Public Safety Measures?
Thirty-three states have laws that can be used to prosecute people living with HIV. Some states are looking to either repeal those laws or reduce their severity.
Robert Suttle clearly remembers telling his boyfriend that he was HIV positive the night they met. But after they split, three quarrel-filled months later, that became a point of contention: His “ex” pressed charges against him.
Suttle’s home state, Louisiana, is one of 33 states with laws that can be used to prosecute people living with HIV. And in Louisiana, intentionally exposing someone to HIV/AIDS is a felony punishable by up to 11 years in prison.
Because he wanted to put the whole ordeal behind him, Suttle accepted a plea bargain in 2009 and ended up doing 6 months in prison. He said he found out too late that pleading guilty meant registering as a sex offender wherever he goes.
Now some states are looking to either repeal such laws or reduce their severity. At issue is the balance between protecting public health and protecting the civil rights of individuals living with HIV.
The laws, which date to the 1980s and ’90s, vary greatly from state to state. Most impose criminal penalties on people who know their HIV status and potentially expose others to the virus. In some states, a conviction can mean up to 35 years in prison.
Twenty-four states require HIV-positive people to disclose their status to sexual partners, while six states require people to register as sex offenders as part of their punishment if they are convicted of an HIV-specific crime. In 22 states, felony laws, which cover assault and attempted murder for example, are used to prosecute people living with HIV who knowingly expose someone to the virus. And 25 states criminalize activities such as spitting, even though they are unlikely to transmit the virus.
Other states have statutes that tack on extra punishment based on the defendant’s HIV status. In Utah, for example, HIV-positive people convicted of prostitution, patronizing a prostitute, or solicitation are guilty of a felony, punishable by up to five years in prison, if they knew their status at the time of the crime. For an HIV-negative person, those same crimes would be a misdemeanor punishable by no more than six months in prison for a first-time offense.
Critics say the laws are relics of the past and demonize people infected with the virus. Some studies have shown that the laws don’t reduce HIV transmission and may actually drive up HIV rates, because people who feel stigmatized are less likely to get tested. A study published in June by researchers with the U.S. Centers for Disease Control and Prevention found no evidence that the laws reduce transmission of the virus.
“It’s very embarrassing and dehumanizing,” said Suttle, 38, who now lives in Harlem, New York, and works as an assistant director for the Sero Project, which advocates to end laws that criminalize people living with the virus.
In 1994, Texas became the first state to repeal its HIV criminal laws, according to the Center for HIV Law and Policy. But since then, people have been prosecuted for HIV exposure under general criminal laws such as attempted murder, which Catherine Hanssens, the center’s executive director, said illustrates why straight repeal of the laws is not enough. Texas courts have upheld that seminal fluid of a man living with HIV may constitute a deadly weapon.
In 2012, Illinois became the second state to revise its HIV crime laws, by requiring prosecutors to prove a defendant intended to transmit HIV and limiting prosecution to a more narrow definition of sexual activity. Iowa followed suit in 2014. Last year, Colorado enacted a law that repealed two HIV criminalization statutes and revised another by requiring that all sexually transmitted infections be treated equally under the law, rather than singling out HIV for prosecution.
California lawmakers are also considering a bill that would make it a misdemeanor to transmit HIV, rather than a felony. A similar HIV bill failed in Florida in May, but is expected to be re-introduced in the next session.
Also in May, the Ohio Supreme Court heard arguments in a case challenging the state’s criminal HIV law. The crux of the case: whether or not the law discriminates against people living with HIV, as well as whether requiring disclosure of one’s HIV status violates the First Amendment.
The push to reform HIV crime statutes “has become a national movement, and it’s part of the larger conversation about overcriminalizing people,” said Allison Nichol, law and policy counsel for the Sero Project.
“We need to take this out of the realm of someone committing a sex crime,” said Nichol, who used to prosecute sex crimes in Indianapolis. “These laws continue to feed a false narrative that people with HIV present a danger to public health, when in fact that is no longer true.”
But supporters of the laws argue they protect public health, and some states have moved in the opposite direction.
In May, Maryland Gov. Larry Hogan, a Republican, signed a law that, among other things, authorizes a judge to issue an emergency order to get someone tested for HIV if it’s believed that person has “caused exposure to a victim.” The law updates a previous one and is intended to treat rape victims who may have contracted HIV or hepatitis C. The same month, Tennessee enacted a law strengthening a statute requiring anyone who’s been arrested to be tested for HIV/AIDS if a law enforcement officer requests it.
“We’re talking about a criminal,” said Maggi Duncan, executive director of the Tennessee Association of Police Chiefs, who helped draft the legislation. “In the course of being arrested, they could have possibly exposed a first responder.”
The law was expanded to include all forms of hepatitis, which is on the rise in the state, Duncan said, “but HIV could easily become on the rise again with needle use, and that’s a real concern with heroin being on the upswing.”
Years of Activism
Activists have pushed for years to change the laws, with a focus on educating lawmakers and prosecutors about how HIV is transmitted. One key fact: An HIV-positive person whose viral load is undetectable has almost no chance of spreading the virus.
“More and more, there’s a realization that HIV criminalization laws have not kept up with science,” said Dan Kirk, a former prosecutor with the office of the Cook County State’s Attorney, which has jurisdiction over Chicago. Last year, then-Cook County State’s Attorney Anita Alvarez called for the law to be revised further.
Today, prosecutors in Illinois have to prove that an offender intended to transmit HIV. Defendants can assert a legal defense if a condom was used, but they cannot use being in treatment as a defense. This despite condoms being less effective — 80 percent — than anti-retroviral drug treatment — 95 percent — at reducing the risk of transmission, according to the CDC.
Under the measure pending in California, it would no longer be a felony to fail to disclose a positive HIV status. Instead it would be a misdemeanor on a par with failing to disclose any other transmitted disease. To be charged with a misdemeanor, the defendant must have known that he or she has a communicable disease and acted with the specific intent to infect another person, engaged in conduct that poses a substantial risk for transmission, and actually transmitted the disease to another person.
“We want people to get tested. We want people to get on medication. We want people to be honest about their HIV status,” said California state Sen. Scott Wiener, a Democrat who sponsored the legislation. “But you don’t accomplish those things by sending people to prison.”
Gray Area
Scattershot state reporting makes it difficult to say how many cases are prosecuted under the HIV transmission laws, according to Hanssens.
But it isn’t difficult to find individual examples. In June, for example, an HIV-positive Georgia man with mental health problems was charged with reckless conduct for allegedly spitting in the eye of a police officer.
In July, a 58-year-old South Carolina man was sentenced to 35 years in prison after he was found guilty of sexually assaulting a 5-year-old girl and potentially exposing her to HIV. Medical tests showed the child did not contract the virus. He was sentenced to 25 years for the rape and 10 years for the potential exposure.
Prosecuting — or defending — these cases can be difficult: How do you prove that someone has disclosed their HIV status? Often, as in the case of Suttle, it becomes a case of “he said, he said.”
A 2015 report by the Williams Institute at the UCLA School of Law found the overwhelming majority of people — 95 percent — charged with HIV crimes in California were sex workers. The report also found that nearly every charge resulted in a conviction; the average prison sentence was longer than two years. Two-thirds of people charged were black or Latino. White men accused of an HIV-related crime were significantly more likely to be released and not charged, the report found.
“This is really a public health issue,” said Scott Schoettes, an HIV project director at Lambda Legal who has worked on HIV legal policy for years.
“It shouldn’t be addressed by criminal law unless there’s malicious intent.”
Court weighs 1st Amendment challenge to Ohio HIV assault law
An Ohio law requiring HIV-infected individuals to tell sexual partners of their status before having sex or risk criminal charges is unconstitutionally based on outmoded stigmas against the gay community and doesn’t take into consideration current survival rates for people with HIV, say lawyers challenging the law in a case before the state Supreme Court.
Ohio’s HIV assault law also violates free speech rights because it focuses only on disclosure, not the actual transmission of the disease, say attorneys arguing against the law on behalf of an Ohio man convicted of failing to tell his girlfriend he had HIV after they started having sex.
Breaking the law is considered a felonious assault with a possible prison sentence of up to eight years.
“The targeting of HIV and no other chronic illnesses reinforces the notion that HIV is a death sentence, which does not reflect the medical reality of HIV,” Raymond Faller, a public defender representing defendant Orlando Batista, said in a court filing last year.
The law discourages people from getting tested for HIV, since individuals can’t be prosecuted if they don’t know their status, Faller said. There’s also evidence showing people take sexual risks with partners despite knowing they’re HIV positive.
Focusing on sexual transmission ignores the other ways HIV can be transmitted, including by needles, Faller said.
“It is akin to trying to end wars by banning swords,” he said.
Prosecutors argue the law upholds a compelling state interest in discouraging exposure to and spread of an incurable disease.
The law does not require abstinence, limit sexual conduct to a certain type or dictate use of safe sex measures, Paula Adams, an assistant Hamilton County prosecutor, said in a February court filing.
The law “simply ensures that sexual conduct under these circumstances is truly consensual and hopefully from there, common human decency will prevail and those consenting adults will make prevention decisions as they see fit,” she said.
The law is not a free speech violation because it covers both the failure of a partner to explain something and having sex without a partner being fully informed, Adams said.
The state Supreme Court is expected to rule by this fall.
In Missouri, a former college wrestler is using similar arguments to challenge his conviction and 30-year sentence for infecting another man with HIV and endangering four other sexual partners.
Thirty-four states including Missouri and Ohio have HIV-specific assault laws, according to the New York-based Center for HIV Law and Policy. More than 300 people have been charged under these laws since 2008, the center says.
The Centers for Disease Control and Prevention estimates 1.1 million people live with HIV in the US, with 1 in 7 of them not knowing it. The estimated number of annual HIV infections declined 18 percent from 2008 to 2014, according to the CDC.
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