Canada: In Nova Scotia, glimmers of hope for science in the prosecution of HIV non-disclosure

Analysis by our HIV JUSTICE WORLDWIDE partner, the Canadian HIV/AIDS Legal Network.

Despite very few prosecutions, Nova Scotia has become an interesting place in Canada with respect to the criminalisation of HIV non-disclosure.

In April 2016, a trial judge from Antigonish ruled that non-disclosure before vaginal sex with a condom or a low viral load (< 1,500 copies/ml) did not amount to aggravated sexual assault.

Back in November 2013, a trial judge from Halifax acquitted a young man with an undetectable viral load who had not disclosed his HIV-positive status before sex without a condom.

These decisions represent significant developments in Canada, where the Supreme Court’s 2012 decision in R. v. Mabior opened the door to prosecutions even if a condom was used or the HIV-positive partner had a low or undetectable viral load.

Thanks to Nova Scotia judges, science might finally prevail.

In the recent Antigonish case, three medical experts testified, all aligning themselves with the Canadian consensus statement on HIV and its transmission in the context of the criminal law that was developed by eminent HIV experts in response to the 2012 Supreme Court decision.

They clearly testified that condoms are highly effective to prevent transmission (“protection is almost 100% when a condom is used,” said the Crown medical expert) and that being on treatment and having a low viral load dramatically reduce the chance of transmitting the virus.

Remarkably, they were also testimonies that the risk of HIV transmission in the absence of ejaculation is at most “negligible” and that HIV transmission from pre-ejaculate, if even possible, is not proven (there was no ejaculation with the first complainant and a reasonable doubt about ejaculation with the second complainant).

Based on the medical evidence before the Court, the trial judge concluded that the legal test of a “realistic possibility of HIV transmission” established in Mabior, which triggers the legal duty to disclose, had not been met. The accused was found not guilty of aggravated sexual assault.

Disappointingly, despite the absence of a “realistic possibility of HIV transmission,” the accused was nevertheless convicted of sexual assault causing bodily harm due to the psychological harm allegedly suffered by the complainants while waiting for their test results (neither of the complainants has contracted HIV).

Despite the progress made in acknowledging scientific evidence, this ultimate decision is highly problematic and arguably legally unfounded. It remains to be seen if the decision will be appealed.

The full decision can be downloaded from the Supreme Court of Novia Scotia’s website

Canada: Mainstream magazine covers the problematic link between 'treatment as prevention' and overly broad HIV criminalisation

Transmission Control

HIV non-disclosure laws do more harm than good

From the June 2015 magazine

Testing HIV positive is no longer a death sentence—a fact that stands as one of the great medical achievements of the twentieth century. The United Nations aims to diagnose 90 percent of all HIV infections worldwide by 2020, deliver antiretroviral therapy to 90 percent of those who test positive, and suppress the virus in 90 percent of those treated. If these goals are met, the AIDS epidemic could be over by 2030.

The UN strategy owes a significant debt to Canadian research—particularly that of Julio Montaner, who was among the first scientists to establish highly active antiretroviral therapy as the standard of care for HIV, back in the mid-1990s. Sustained use of HAART suppresses the virus’s ability to replicate, eventually decreasing the concentration of HIV cells in the blood to undetectable levels and delaying the onset of symptoms and eventual progression to AIDS.

Regrettably, our legal system has not kept pace with these advances.

Montaner conducts his research in Vancouver, which was among the hardest-hit communities in North America in the early ’90s. The British Columbia government soon became an enthusiastic supporter of HAART and quickly rolled out antiretroviral-therapy coverage across the province. Between 1996 and 2009, the number of people taking HAART increased more than sixfold. Accordingly, the rate of AIDS-related deaths in the province plummeted 80 percent.

In their efforts to treat the virus, the researchers had stumbled upon a way to control its spread, too: when antiretroviral treatment reduces the virus in a patient’s bloodstream, it also reduces the virus to undetectable levels in sexual fluids and dramatically decreases the risk of transmission. Studies indicate that, among gay men, an undetectable viral load decreases the risk for unprotected receptive anal sex from 1.4 percent to almost zero. When it comes to the spread of HIV, a low viral load (between zero and 0.05 viral copies per millilitre) is more effective at preventing transmission than wearing a condom is.

Once the epicentre for new cases, BC has been enormously successful at controlling the HIV epidemic, using this Treatment as Prevention strategy, or TasP. The rate of new infections is now below the Canadian average. For the past decade, Montaner has been calling for national and international prevention strategies modelled on BC’s success with TasP. But what seems like sound medical advice could inadvertently put Canadian patients at legal risk. This is because we have one of the most aggressive legal approaches to HIV non-disclosure in the world. We are second only to the US in prosecutions.

HIV-positive Canadians who don’t reveal their status before they have intercourse can be charged with aggravated sexual assault. Conviction carries with it a maximum sentence of life in prison and a mandatory listing on the national registry of sex offenders. Between 1989 and early 2015, 176 people, in 188 separate cases, were prosecuted for non-disclosure, and more than half of the cases led to conviction.

Yet many of those convicted did not transmit the virus to the plaintiff. To be found guilty, a defendant need only have knowingly exposed his or her partner to what the courts deem a “realistic possibility” of transmission. Since there are no prosecutorial guidelines that define a low viral load, interpretations vary widely from case to case. And so it is possible that a properly medicated HIV-positive sexual partner might be convicted under the law, even if his viral load is so low as to reduce the possibility of transmission to a statistically negligible level.

The non-disclosure law originated with the 1998 Supreme Court decision in R v. Cuerrier, at a time when death rates were skyrocketing and policy-makers were scaling up testing and treatment. Proponents of the law argue that it helps protect people from malicious exposure to HIV.

The feeling on the ground is very different: since the law punishes only those who knowingly put partners at risk, it might encourage some at-risk Canadians to remain ignorant about their medical status. Evidence is sparse when it comes to this chilling effect, but even researchers such as Montaner agree that the law “creates a counterproductive environment.”

There is also a growing number of allegations that health authorities have not been forthcoming when it comes to informing patients of the legal risks associated with being HIV positive. Though BC’s 2014 testing guidelines lay out explicitly the requirement for informed consent, they don’t advise practitioners to address the issue of non-disclosure criminalization before testing. The province’s public-health officer, Perry Kendall, says this is intentional. Public-health practitioners are not legal experts, he says, noting that the longer and more complex the preliminary conversation, the less likely the patient will be to go through with testing.

While there is little systematic collection of information about testing experiences, Micheal Vonn of the BC Civil Liberties Association says she has received a number of complaints from patients, particularly pregnant women, who claim they were tested without consent. Vonn, alarmed by these allegations, plans to investigate further.

Another human-rights advocate, Richard Elliott of the Canadian HIV/AIDS Legal Network, believes clearer guidelines are essential to ensuring that those who are tested are sufficiently aware of the legal risks. He notes that physicians’ records have been subpoenaed in court to support convictions for non-disclosure.

The unfortunate irony here is that the very laws intended to prevent further transmission of HIV may actually promote its spread—by discouraging testing and, by extension, impeding the work of the successful TasP program. Seventeen years after the Supreme Court’s 1998 decision, Canadian lawmakers must ensure that our policy of criminalizing non-disclosure does not serve to punish those who opt for life-saving HIV therapy and treatment.

US: Lambda Legal calls for halt to HIV-based criminal prosecutions in wake of Department of Justice guidance

[Press release from Lambda Legal]

“We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

(Washington, D.C. Thursday, July 17, 2014) – Lambda Legal today called for a moratorium on all HIV-based criminal prosecutions until state legislatures take action to implement the reforms recommended in the recent Department of Justice (DOJ) guidance advising states to eliminate such prosecutions absent clear evidence of an intent to harm and a significant risk of actual transmission.

“This is a watershed moment in the fight to decriminalize HIV. When the country’s leading law enforcement agency — working hand-in-hand with the country’s leading public health authority — reaches the conclusion that particular laws and criminal prosecutions are working at cross-purposes to our national strategy for ending the HIV/AIDS epidemic, it is time for those with the power to end these prosecutions to take immediate action,” said Scott Schoettes, HIV Project Director for Lambda Legal. “We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

Earlier this year, the DOJ co-authored an article with the Centers for Disease Control and Prevention (CDC) analyzing the current landscape with respect to HIV criminalization laws in the United States. As a follow-up, the DOJ this week published guidance (“Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors” [link]) noting that these laws are not based on a current understanding of HIV or the availability of biomedical techniques for preventing its transmission, were enacted when the prognosis of those with access to care was much different than it is today, and place unique and unnecessary additional burdens on people living with HIV.

Schoettes added, “For years, Lambda Legal has been advocating for the repeal or reform of HIV criminalization laws, assisting defense attorneys from behind the scenes, and—when the opportunity arose and a solid legal argument could be made—fighting in court ourselves against the most egregious application of such laws. Along with a wide range of allies we have refined the arguments against these laws, made our case to audiences both gay and straight, and pressed others to join our cause. The growing drumbeat against these laws and unjust prosecutions finally has reached the ears of those in positions of authority. And this summer, the tide has finally turned in our favor.”

Within the criminal justice system, prosecutors have a significant degree of discretion and represent the most important safeguard against unjust applications of the criminal law. In this circumstance, any government attorney who is currently prosecuting a criminal case that turns upon the HIV status of the defendant is invested with the power to consider whether that prosecution conforms to the best practices set forth by the Department of Justice guidance and to discontinue prosecutions that are not in line it. In situations involving consensual sexual conduct between adults, a prosecution would not move forward under the parameters of this guidance unless there is clear evidence of both the intent to transmit the virus and a significant risk of transmission as a result of that person’s conduct.

“Right now, dozens of individuals in states all across the country face prosecutions that are not justifiable under the parameters set forth in the DOJ guidance,” said Schoettes. “No person who is in a position to halt such a prosecution should stand idly by while these individuals are subjected to such unwarranted persecution. We call upon those who have pledged themselves to pursue justice on behalf of the communities they serve to fulfill that pledge now, to end all prosecutions based on HIV status, and to return these individuals to their families and their lives.”

Last month, in a pivotal appeal litigated by Lambda Legal, the Iowa Supreme Court set aside the conviction of Nick Rhoades, an HIV-positive Iowan who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man during which they used a condom. In reversing the conviction, the Court questioned whether HIV-positive individuals who have a reduced viral load as a result of effective treatment can transmit HIV through sexual activity.

The DOJ guidance is available here

The Iowa Supreme Court ruling in Lambda Legal’s case Rhoades v. Iowa is available here

US: Department of Justice releases guidance to eliminate or reform HIV criminalisation laws

[Press release from the US Department of Justice]

JUSTICE DEPARTMENT RELEASES BEST PRACTICES GUIDE TO REFORM HIV-SPECIFIC CRIMINAL LAWS TO ALIGN WITH SCIENTIFICALLY-SUPPORTED FACTORS

WASHINGTON – The Justice Department announced today that it has released a Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors. This guide provides technical assistance regarding state laws that criminalize engaging in certain behaviors without disclosing known HIV-positive status. The guide will assist states to ensure that their policies reflect contemporary understanding of HIV transmission routes and associated benefits of treatment and do not place unnecessary burdens on individuals living with HIV/AIDS.

This guide is in follow-up to the department’s March 15, 2014, article published with the Centers for Disease Control and Prevention (CDC), Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, which examined HIV-specific criminal laws. Generally, these laws do not account for scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken. As a result, many of these state laws criminalize behaviors that the CDC regards as posing either no risk or negligible risk for HIV transmission even in the absence of risk reduction measures.

“While initially well intentioned, these laws often run counter to current scientific evidence about routes of HIV transmission, and may run counter to our best public health practices for prevention and treatment of HIV,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. “The department is committed to using all of the tools available to address the stigma that acts as a barrier to effectively addressing this epidemic.”

The department’s efforts to provide guidance on HIV-specific criminal laws are part of its ongoing commitment to implementation of the National HIV/AID Strategy, released in 2010. Today’s guide furthers the expectation from the Office of National AIDS Policy that we tackle misconceptions, stigma and discrimination to break down barriers to care for those people living with HIV in response to the President’s Executive Order last year on the HIV Care Continuum Initiative. For more information on the National HIV/AIDS Strategy, visit the White House website.

[Press release from the Center for HIV Law and Policy]

The U.S. Department of Justice (DOJ) today issued important new guidance to help end the use of state criminal laws to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status.  DOJ’s guidance, titled “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors,” rebuts the unsupported assumptions that triggered the adoption of most state criminal laws targeting HIV; outlines the impact on individuals and public health of the stigma these HIV-specific laws reinforce; and explains the current scientific knowledge and medical developments that compel reform.

“HIV criminalization laws are rooted in profound ignorance about the roots, risks and consequences of HIV transmission. This ignorance reflects and perpetuates stigma associated with an HIV diagnosis, and has no place in law and public policy,” said Catherine Hanssens, Executive Director of The Center for HIV Law and Policy (CHLP). “Today’s guidance is the first of its kind from a government law enforcement agency, and an important step in addressing that ignorance. The Department of Justice rightly focuses on three essential truths: that HIV is not an easy virus to transmit, that treatment and other risk-reduction methods can reduce that risk to negligible or zero, and that currently available therapies have transformed HIV into a manageable chronic disease.”

Nearly two-thirds of U.S. states have HIV-specific laws that impose criminal sanctions on people who do not disclose their HIV positive status to a sexual partner or who engage in behavior – such as spitting or biting – that poses virtually no risk of transmitting HIV. Regardless of whether HIV transmission occurs, those who are charged are prosecuted as serious felons, often receive lengthy sentences, and in nine states are burdened with mandatory sex offender registration. The classification of HIV exposure and transmission as a serious felony is grossly out of proportion to the actual threat of harm.

“The DOJ guidance carefully outlines the facts that call for modification of sentences associated with HIV transmission or exposure – the impact of current treatment options and the impact on life quality and expectancy. I wish the guidance more explicitly connected the dots by directly calling for an end to felony prosecutions. At the same time, this is the clear context for that information in the guidance,” Hanssens noted.

A number of states also use general criminal charges such as assault or reckless endangerment to prosecute people living with HIV who are sexually active or who are charged following altercations with law enforcement personnel. The DOJ guidance does not directly address these laws, although its underlying rationale is applicable to all forms of state HIV criminal law policy.

“At 43 years old I never imagined how different my life would be because of my arrest and incarceration,” says David Plunkett who was sentenced to 10 years in New York State, which has no HIV specific criminal law, for “assault with a deadly weapon” – his saliva.  “I also never realized the stigma attached to those with HIV and especially those who also have a criminal record. I should have been able to focus on my health and career, not battling a system that incarcerates those who live with a chronic illness, and remains uninformed about the nature and transmission of HIV.”

Stigma associated with HIV is a barrier to testing, treatment, and prevention. Recent studies show that antiretroviral therapy can reduce the already-small per-act risk of transmission by an additional 96%, but approximately 16-20% of the one million Americans living with HIV do not know they have the virus and likely are the primary source of new infections. Those who are newly infected, when the level of HIV virus in their bodies is high, but who are unaware that they are infected, are the most likely to transmit HIV to another partner.

“Today, the risk of transmission of HIV from a patient taking effective medical therapy is close to zero, and the life expectancy of a newly diagnosed patient with HIV is nearly indistinguishable from his uninfected neighbor. But HIV remains with us and will do so as long as those who are infected are not diagnosed and treated,” says Dr. Wendy Armstrong, Program Director for the Infectious Disease Fellowship Training Program at Emory University in Atlanta, Georgia. “Criminalization laws do nothing to advance individual or public health, but rather enhance stigma, embrace blame, and discourage testing. There are more effective means to combat this epidemic.”

The guidance notes that many HIV-specific criminal laws run counter to scientific evidence about routes of HIV transmission, and undermine public health goals such as promoting HIV testing and treatment. DOJ recommends that states reform their laws to eliminate HIV-specific criminal penalties, with the exception of sentence enhancement in cases of sexual assault where HIV transmission could occur or in cases in which a person with HIV acts with the intention to transmit HIV and engages in conduct posing a significant risk of transmission.

The DOJ guidance is the product of two directives: one is President Obama’s National HIV/AIDS Strategy, which tasked DOJ with assessing HIV criminal laws and offering technical assistance to states looking to reform their laws; the other is a Congressional Committee Report that accompanied the Commerce, Justice, Science, and Related Agencies Appropriations Bill 2014, which called for similar action and an analysis of civil commitment laws used to extend the confinement of registered sex offenders. The DOJ guidance is available at http://hivlawandpolicy.org/resources/us-department-justice-calls-states-eliminate-or-reform-archaic-hiv-criminalization-laws.

Through the Positive Justice Project (PJP), a national coalition of organizations and individuals working to end HIV criminalization in the United States, CHLP is actively working with community advocates and people living with HIV across the country to modernize HIV-related criminal laws.

The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.

U.S. Department of Justice Civil Rights Division Best Practices Guide

UK: Court of Appeal upholds man’s conviction for recklessly passing on genital herpes during sex with ex-girlfriend

Today, the Court of Appeal upheld David Golding’s 2011 conviction for ‘recklessly’ infecting his ex-girfriend with genital herpes (HSV-2) during a brief relationship.  However, his original 14 month sentence was reduced to three months (as time served, Mr Golding was released on bail in September 2011 after spending six weeks in prison) because of the exceptional delay in bringing the case to appeal. “Accordingly,” wrote Lord Justice Treacy on behalf of fellow judges Mr Justice Bean and His Honour Judge Lakin, “notwithstanding our view as to the propriety of the initial sentence, we exercise our power to reduce that sentence in the light of what has occurred subsequently.”

The Court found that Mr Golding understood both that he had the infection and how it is transmitted, and by not preventing transmission – or disclosing his condition thereby allowing the complainant to make an informed decision whether or not she wanted to risk acquiring herpes – was guilty of reckless grievous bodily harm under Section 20 of the Offences Against The Person Act 1861.

Notably, the Court reaffirmed that in this case herpes was a “really serious bodily harm”, although it noted that in a future contested trial it would be up to a jury to consider whether the herpes infection was, indeed, really serious, on a case-by-case basis.

20. As to the impact of herpes, the evidence was that whilst it was not a life threatening condition, it is incurable. The initial infection is described as an unpleasant and painful acute illness with debilitating effects. On occasion admission to hospital may be required, (not in this case), and most affected people can return to work within a week or so. Episodes may recur throughout life. Generally when they do, they are milder and shorter in impact. Psychological disturbance is common in the immediate aftermath of the initial episode. HSV-2 has a higher recurrence rate than HSV-1.

62. ….The evidence of the painful symptoms, their effect at the time, their recurrence, and the prospect of their recurrence without effective cure for an indefinite period was in our judgment sufficient for a jury to consider that it amounted to really serious bodily harm.

During the Appeal, Mr Golding testified that he had not been given clear information that genital herpes might be transmtted even in the absence of a “flare up”. The Court did not believe Mr Golding, and because there were no medical notes regarding how he had been counselled (despite him testifying that he only received confirmation of his herpes diagnosis over the phone from a GUM receptionist and a general leaflet on STIs at his initial visit) and because both medical experts – Dr Kenneth Mutton (for the Crown) and Professor George Kinghorn (for the defence) –  said that “best practice” would be for a newly diagnosed person to be counselled about “the possibility of infectivity even when a person is asymptomatic” the Court found Mr Golding was, in fact, reckless.

22. The available medical notes were not specific as to advice provided to the appellant. According to Dr Mutton, he would have expected a full discussion to have taken place in April 2008 at the Genito-urinary Clinic following the guideline of the British Association for Sexual Health and HIV. This refers to condom use when lesions are present, the possibility of infectivity even when a person is asymptomatic, and disclosure of the condition to a partner.

23. Professor Kinghorn, in the absence of particular evidence as to the advice given to the appellant, thought that it was less likely that the appellant would have been told that he was infectious when no lesions were present. However, he conceded that since the turn of the century, the state of medical knowledge in this respect available to general practitioners had improved. He also acknowledged that a GP following best practice would have included advice about asymptomatic transfer.

This will have important future implications for the clinician-patient relationship, not only at GUM clinics, but also for GPs. It suggests that courts will assume this “best practice” has taken place – even if it hasn’t – and it will be hard for a future defendant to prove that he or she hadn’t been counselled in this way if there is nothing in their medical notes.

Given the public policy implications of this ruling, there may well be an application to appeal the case to the Supreme Court.

Unusually, it was the CPS that had initiated this appeal after seeing a report from Dr Mutton, produced after Mr Golding was sentenced (following an initial guilty plea) which raised the issue of whether genital herpes could be described as “really serious bodily harm” so as to come within Section 20. In the latest (unpublished) version of its legal guidance on prosecuting Intentional or Reckless Sexual Transmission of Infection it had suggested that genital herpes could be prosecuted under Section 47 of the OAPA 1961, actual bodily harm.

Mr Golding had been prepared to plead guilty under Section 47 in his original trial, but the judge had made it clear that he would only accept a plea (or a full trial) under Section 20. In effect, however, the Court of Appeal has dodged a bullet by avoiding a clear statement that sexual herpes transmission is always serious bodily harm.

As it stands, the reckless (or intentional) transmission of any sexually transmitted infection (whether or not it is considered to be objectively serious by, for example, BASHH or other medical experts) could be prosecuted in England & Wales and a jury will decide whether the infection is subjectively serious according to the testimony of the complainant and medical experts.

It should be recalled that the original draft of the CPS guidance, published in 2006, covered not only the intentional or reckless sexual transmission of HIV, but also chlamydia; genital herpes; gonorrhoea; hepatitis A, B and C; LGV (lymphogranuloma venereum); non-specific urethritis (NSU), and syphilis.

Back in 2007, in response to the draft, the Government’s Expert Advisory Group on AIDS (EAGA) noted that including so many non-serious STIs was “one of the most disturbing aspects of the document.” It conceded that “broadening the policy to cover other infections may be desirable to avoid stigmatising HIV,” but added that “there is a danger of confusion because of significant differences between the infections listed.” It questioned the CPS’s understanding of the nature of STIs, how they are transmitted and whether they actually cause any serious harm in pragmatic terms.

As an example it used the case of genital herpes, which “is simply a cold sore on the genitals, indeed half of all cases in the UK are thought to be caused by transmission of herpes from the mouth to the partner’s genitals during oral sex. It causes little serious physical harm and most people who contract it are not even psychologically disturbed by it in the longer term. Even given the definition in the document, it seems to defy common sense that this could constitute grievous bodily harm.”

EAGA added that HSV, the virus that causes genital herpes, is often passed from parent to child with a kiss on the cheek. “Why should it be grievous bodily harm to infect a partner with genital herpes through sex, but not when an adult infects a child by kissing their cheek, or another adult by kissing their mouth?”

It stressed that “the CPS needs to take the advice of experts regarding the seriousness of [STIs]. In the vast majority of cases, seeking to prosecute transmission would be an entirely disproportionate response.”

The Herpes Viruses Association (HVA) issued a press release following today’s verdict which stated that “we are appalled at the court’s failure to overturn the guilty verdict. Herpes virus transmission should not be in the legal arena at all.”

HVA charity director Marian Nicholson said: “This charity represents around forty million people in the UK who carry herpes simplex infections. Over half the cases of genital herpes are caused by the common facial cold sore type (HSV-1) usually by oral sex. The implications of the judgment are that any of them could be sent to prison if they transmit this infection to a partner.”

She said: “I am pleased that David Golding has not been sent back to prison – but this ruling is inappropriate. It is not in anyone’s interest to send people to prison for passing on such a common and usually unnoticed condition.”

She continued, “We should take responsibility for our own sexual health and not assume that a partner is infection-free. Many infections are caught from people who don’t know they have them so blaming someone else is pointless.”

 

R v Golding [2014] EWCA Crim 889

Canada: Supreme Court rules that unwanted pregnancy is a similar 'harm' to HIV

Men who sabotage condoms may turn an otherwise consensual act with a woman into sexual assault, and women who lie about using birth control have been left with some uncertainty about whether they, too, could face charges, under a Supreme Court ruling yesterday on deception before sex.

See also Court avoids making HIV prosecutions easier

The Supreme Court of Canada heeded the warnings of HIV groups in a narrow 4-3 judgment March 7.

The court upheld the conviction of Craig Hutchinson for aggravated sexual assault. Hutchinson poked holes in condoms he used with his girlfriend. He did this without her consent, hoping that she would become pregnant, which she did. There are parallels with HIV -ondisclosure cases, which also involve keeping information from someone before a sexual encounter.

The court had two legal routes available to it to convict. One route would have used the fraud provisions in the Criminal Code. This is essentially the same legal principle used in HIV-nondisclosure cases and requires both a dishonest act and some harm, or risk of harm. The majority of the Supreme Court endorsed this approach today.

The other route could have further crowbarred open HIV-nondisclosure prosecutions. A minority of judges at the Supreme Court would not have required any proof of harm in order to secure a conviction in Hutchinson’s case. This was also the reasoning of the majority of the Nova Scotia Court of Appeal.

The Canadian HIV/AIDS Legal Network and the HIV and AIDS Legal Clinic Ontario (HALCO) intervened last year to argue that the Court of Appeal’s approach would unfairly extend the criminal law to cases where there was no realistic risk of HIV transmission.

Chief Justice Beverley McLachlin agreed, saying that the court must act to protect the existing legal test and avoid “replac[ing] the clarity and restraint achieved by [HIV-nondisclosure] decisions with confusion and over-criminalization.”

This will likely seem insufficient for those who believe courts already go too far to criminalize the lives of HIV-positive people. But the court did accept the reasoning of HIV groups that intervened in the case — which it refused to do the last two times HIV nondisclosure was before the Supreme Court.

Cecile Kazatchkine, a lawyer at the Legal Network, says that the court avoided setting a bad precedent.

“This case doesn’t have any implications for people living with HIV,” Kazatchkine says. “There was a danger that it would, but it didn’t.”

“The Legal Network and HALCO have been really diligent; we decided to intervene, and put all of our energy into this case, even though it wasn’t an HIV case, to make sure the court didn’t reach a decision that makes things worse for people living with HIV.”

In December 2012, the Supreme Court released its decision in the HIV non-disclosure case of Mabior. Panned by HIV groups, a unanimous court required HIV positive people to inform their partners about their health status, unless they have both a low viral load and wear a condom.

In Mabior, the Crown asked the court to criminalize non-disclosure, regardless of whether there was any risk of transmission. That approach was rejected by the court at the time, and rejected again in the March 7 decision. Kazatchkine says that the decision will send a message to Crowns to stop trying to equate non-disclosure in all cases with sexual assault.

Kyle Kirkup, a doctoral student at the University of Toronto Faculty of Law, agrees.

“I think maybe this shows that Mabior is the high water mark of criminalization and that’s the message that the Supreme Court of Canada is trying to send, that the court is not willing to go further.

“If you adopted a broader definition of consent, the concern was that people with HIV would have to disclose in all kinds of situations where there is not a realistic possibility  of transmission, like oral sex and mutual masturbation.”

Nonetheless, the reaction to today’s decision is a far cry from years past, when HIV groups called for an end to criminal prosecutions altogether.

Kazatchkine admits that the Legal Network was in an awkward position when it argued for the court to uphold its earlier decision — a decision which the Legal Network publicly denounced at the time.

The case nonetheless may prove to be an important one in the development of the law of sexual assault. While Hutchinson may have opened the door to other non-HIV related fraud charges, the facts in the case were so unusual that it’s hard to know how broad the impact of the case will be, says Kirkup.

 

Switzerland: How effective HIV treatment has impacted upon the criminalisation of HIV exposure

The preventative effect on HIV transmission of being virally suppressed due to antiretroviral therapy (ART), as recognized by the Swiss Commission for HIV/AIDS in 2008, has helped to reduce the criminalization of HIV exposure in Switzerland. Since the Swiss statement’s release, there have been acquittals of two HIV exposure cases in 2009, no further prosecutions for HIV exposure and alterations to the law used in these cases, according to study results presented at EACS 2013 in Brussels, Belgium.

Although Switzerland is not the only country to criminalize HIV, the country did have one of the most severe HIV criminal legislation in Europe, together with Sweden and Austria. Swiss law had considered exposure to HIV, defined as sex without a condom between an HIV-infected individual and an HIV-uninfected individual, a criminal offense. This was the case even if the HIV-uninfected partner gave consent, there was no transmission or the HIV-infected partner did not know his or her status.

The criminal cases were based in two articles of the Swiss penal code: 122, which concerns serious bodily harm, and 231, which covers transmission of human diseases. The latter, despite supposedly being a public health measure, had only been invoked in cases of HIV exposure or transmission. From 1990 onward, this legal apparatus had resulted in more than 80 proceedings, with 48 prosecutions — over half of them due to exposure only, with no transmission having happened.

This scenario started changing in 2008, according to Deborah Glejser and Sascha Moore Boffi, from Groupe Sida Genève, a Swiss community-based HIV organization. Glejser performed a survey that reviewed criminal judgments in Swiss cantonal and federal courts, statements by stakeholders and policy makers and records of parliamentary sessions since 2009. Glejser states that the turning point for advocacy work against criminalization was the declaration issued by the Swiss Commission for HIV/AIDS (now known as the Swiss Commission for Sexual Health) in 2008.

The Swiss statement, as it became known, stated that “HIV-positive individuals on effective antiretroviral therapy who have had an undetectable viral load for at least six months and without sexually-transmitted infections are sexually non-infectious.” Due to the worldwide controversy created by the declaration, it was not immediately used in court, with Swiss prosecutors trying to have it removed from debates so as not to be used as a defense. Although there was international acknowledgement of the Swiss statement in 2009, advocacy groups did not wait for it, using policy briefs by UNAIDS to show that criminal laws against HIV transmission had no impact on the spreading of the virus or containment of the epidemic.

A breakthrough came in December 2008 in the case of an HIV-infected man who was condemned to a year and a half of prison by a Geneva court. The man knew he had an undetectable viral load and had sex with two consenting HIV-uninfected women. Although no transmission occurred, the two women sued the man, who appealed the sentence. Three months later, the court cleared him of the charges stating that he was undergoing ART at the time and had little chance to infect his partners. This was the first decision of its kind in Switzerland, but not the only one. A second acquittal happened in 2009. Since then, no further prosecutions have been carried out for HIV exposure when the HIV-infected partner was on effective ART.

For Glejser, these acquittals were a major step forward and set a legal precedent, leading to a significant decrease in the number of prosecutions after 2009. This was supported in later years by changes in legislation, such as the 2012 reformation of article 231, preventing prosecution when informed consent is given. With the new wording, the article will only be invoked for intentional or malicious transmission.

HIV exposure can still be prosecuted under article 122, but thanks to a 2013 ruling by the Swiss federal court (equivalent to the U.S. Supreme Court), HIV transmission is no longer considered serious bodily harm, falling under common assault and making it easier for defendants to use the Swiss statement for defense, as well as resulting in lesser sentences.

Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will consider reviewing application of law

Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö previously convicted of exposing four women to HIV on the grounds that since he had a stable undetectable viral load on antiretrovirall treatment with no other STIs he could not cause danger to another person.

He had previously been sentenced to a year in prison and and fined 150,000 kronor (€17,000) by the lower court, but was released last week pending the appeal after the Court consulted experts from the Swedish Institute for Communicable Disease Control (SMI).

A press release from the Swedish Courts notes the following (unofficial translation)

The Court of Appeal, for its assessment of the probability of transmission by sexual intercourse, had access to information other than that which existed at the district court. The Court of Appeal has obtained an expert opinion from the Swedish Institute for Infectious Disease Control (SMI) regarding the risk of transmission of HIV through unprotected sexual intercourse. Furthermore, Professor Jan Albert of the Karolinska Institute, was consulted as an expert.

For expert opinion and data Jan Albert has said it can be clearly concluded that the risk of transmission of HIV in vaginal intercourse without a condom is very low, provided that the HIV-infected party is on stable HIV treatment. For an HIV-positive patient to be considered to be on stable HIV treatment, as is apparent from the opinion, it requires that the patient has a consistently high adherence to their medication, that at least two consecutive viral measurements with 3-6 month intervals show that patient’s virus levels in the blood were below the lowest detectable levels in routine testing, and the patient does not carry any other sexually transmitted infection .

The Court of Appeal noted in its judgment that the investigation did not show anything other than the accused was on stable HIV treatment during the time that the charges related to, and based on what the SMI and Jan Albert have said about risk of infection, assessing the likelihood that sexual intercourse to which the charges relate means that the risk of HIV transmission was so small that no real danger could be presupposed. Since this does not meet the required elements of the crime of creating danger to another, the indictment was dismissed.

Major policy shift

The ruling reflects a major shift in policy announced last week by the National Board of Health and Welfare (Socialstyrelsen).

In a press release entitled, ‘Effective treatment reduces the risk of infection by HIV’, the agency, which is part of the Swedish Ministry of Health and Social Affairs, clarified the treating physician and the individual’s responsibility under the Communicable Diseases Act – which creates a ‘disclosure obligation’ for anyone with an infectious disease.

The criteria to not be legally bound to disclose are very similar to those set out in January 2008 by the Swiss Federal AIDS Commission’s ‘Swiss statement’. They are, as follows:

For treatment of HIV infection to be considered well-functioning, patients must be highly adherent to antiretroviral treatment. Virus levels in the blood should be tested regularly, verified by two measurements between three to six months apart and the result should be virus levels below 50 copies per milliliter.

Follow-up tests should be performed two to four times a year. No other ongoing sexually transmitted disease should be suspected, as this could increase the risk of infection. When these criteria are met, the SMI estimates that infectivity is minimized in a person infected with HIV similar to wearing a condom during sexual intercourse.

HIV infection is one of the dangerous diseases included under the Communicable Diseases Act. The law states that the attending physician has the responsibility to advise people with dangerous diseases of appropriate conduct. It also says that if the person knows, or has reason to suspect, that he or she is carrying a contagious disease that person is obliged to protect others from infection.

The attending physician, when he or she takes a position on the conduct that the individual should have, should consider that a person with HIV infection who is on well functioning treatment is not required to inform their sexual partners about their infection…

People who have HIV infection, however, must act on their own initiative if there is a significant risk, for example if he or she also gets another sexually transmitted infection. This is true no matter what advice the person has previously received by their treating physician. A significant risk includes situations when someone risks coming into contact with his or her body fluids, for example during blood tests, at the dentists, or during sex with a risk of bleeding.

Coaltion of HIV experts

The National Board of Health and Welfare was itself influenced by a coalition of HIV experts. An editorial by Johan Carlson (Director of SMI), Anders Tegnell  (State epidemiologist, SMI), Jan Albert (Professor of Communicable Diseases, Karolinska Institute and Senior Physician at Karolinska University Hospital) and

Anders Sönnerborg (Professor of Clinical Virology,Karolinska Institut and Senior Physician at Karolinska University Hospital) entitled ‘HIV is no longer a life-threatening disease’, also published last week, heralded this new (for Sweden) paradigm.

Today, 21 October, SMI publishes along with Reference Group for Antiviral Therapy (RAV) a report summarising the state of knowledge with regard to the significant reduction in infectivity in treated HIV infection.

SMI and RAV estimates that the infectivity of a patient living with HIV and who have been stabilized on treatment is very low by sexual contact and minimal if a condom is used in vaginal and anal intercourse. This applies provided that there is no other sexually transmitted infections that can affect the risk of HIV transmission. It is therefore important to always use a condom, especially to protect against other sexually transmitted infections, but also to minimize any residual infectious risk for HIV.

This knowledge provides two important conclusions. Firstly, we improve the chances of early diagnosis and initiate treatment as early as possible…

The second conclusion is that current knowledge about HIV will have to influence society’s attitudes to and treatment of people living with HIV. Knowledge about HIV, how the virus is transmitted and what it means to live with HIV, need to be improved in the whole society. Especially within the health care and disease control work, but it is equally important in other areas of society, such as education and social services, the media and the judiciary.

Minister for Social Affairs will consider reviewing application of law

Göran Hägglund, Sweden’s Minister for Social Affairs reacted to the report by telling Sweden’s public broadcaster, SVT, that he will consider reviewing the application of law as it relates to HIV non-disclosure, exposure and transmission.

“If you have an illness that has the potential to infect, it is reasonable to disclose,” he said. “I just think that one would like to know in this situation. But the application of law is another question. Where it is possible to discuss how the law looks and applied, it may be time to consider a change.”

This policy shift is a major victory for the advocates who have been working tirelessly to change Sweden’s draconian attitude towards people living with HIV, notably the partnership of RFSU (the Swedish Association for Sexuality Education), HIV-Sweden and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) who have been lobbying and campaigning to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.

Hägglund also reacted to a recently-published editorial by Marielle Nakunzi, a lawyer at RFSU, which argued that the justice system has such an outdated view of HIV that it still lives in the 1980s.

“It is a matter of making sure that we always have laws that are in tune with the state of knowledge available,” he told SVT. “Therefore, we should always consider the knowledge we have. It’s about educating the justice system.”

US: House Appropriations Committee passes amendment that would fund review of HIV-specific criminal laws

The United States is closer than ever before in ensuring that their HIV-specific laws are reviewed and amended in order to be consistent with current medical and scientific knowledge.

Earlier this week, the U.S. House Appropriations Committee passed an amendment proposed by Congresswoman Barbara Lee to the FY2014 Commerce-Justice-Science Appropriations Act that would require the Attorney General to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV.

This wording is very similar to the content of Lee’s REPEAL HIV Discrimination Act, which was re-introduced in May with bi-partisan support, and which currently has 32 co-sponsors.

“HIV criminalization laws breed, discrimination, distrust, and hatred. These laws are based on fear, not science. This is an important first step in ensuring that our laws reflect current scientific understandings of HIV.” notes Congresswoman Lee in a press release. This amendment passed on a voice vote as part of the manager’s amendment.

The amendment reads as follows:

Modernizing laws with respect to people living with HIV/AIDS.

The Committee is aware of the position of the President’s Advisory Council on AIDS (PACHA) that current criminal laws require modernization, should be consistent with current medical and scientific knowledge and avoid imposition of unwarranted punishment based on health and disability status.  The Committee directs the Attorney General, within 90 days following enactment of this Act, to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV/AIDS. The Committee further directs the Attorney General, no later than 180 days from initiating the review, to make best practice recommendations to ensure such policies do not place unique or additional burdens on individuals living with HIV/AIDS and reflect contemporary understanding of HIV transmission routes and associated benefits of treatment.

The Appropriations Act (officially titled ‘S.1329 : An original bill making appropriations for Departments of Commerce and Justice, and Science, and Related Agencies for the fiscal year ending September 30, 2014, and for other purposes’) has now been placed on Senate Legislative Calendar.

The Sero Project has issued a press release welcoming the amendment and explaining what it means for advocacy against overly-broad HIV-specific criminal laws in the United States.

SERO. Appropriations Amendment Release