Germany: National AIDS Council releases powerful policy statement on HIV criminalisation

The German National AIDS Council – an independent advisory body of the Ministry of Health consisting of experts from the fields of research, medical care, public health services, ethics, law, social sciences, as well as people from the civil society – has produced a consensus statement on HIV criminalisation during consensual sex.

A press release issued yesterday by the Federal Ministry of Health states (unnofficial translation from German)

HIV infection has become a treatable chronic disease. In Germany, life expectancy with appropriate medical care is nearly normal. However, people with HIV still experience limitations, especially in everyday social life. They are often stigmatised and discriminated against in both the workplace and in the home environment. Criminal court judgments and their public perception play in a crucial role in this context.

  1. The National AIDS Council points out that the following medical factors should be assessed in criminal proceedings: HIV is difficult infection to transmit compared to other sexually transmitted diseases. The transmissibility of HIV is primarily related to viral load. In the first weeks after infection this is particularly high, and can amount to several million viral copies per milliliter of blood. After a few weeks or months, however, the immune system, usually controls the infection. Once viral load drops the body can keep viral load low for months or years before medication needs to be taken. During this time, the risk of infection is much lower than in the early phase of infection. Once the immune system weakens, generally antiretroviral therapy commences. With effective treatment, the viral load falls below the detection limit (viral load less than 50 viral copies / ml blood). If viral replication is permanently suppressed completely, according to current medical knowledge, HIV is not sexually transmitted. The risk reduction of successful antiretroviral therapy is at least comparable to the correct use of condoms. It is assumed that a large proportion of HIV transmission takes place during the early stages of HIV infection, i.e. at a time, when those who are infected are not aware of their infection, because an HIV antibody test can only show infection after a few weeks.
  2. Against this background, the National AIDS Council emphasisesA criminal examination of HIV exposure or transmission related to consensual sexual intercourse must be consistent with the medical facts. The decision whether or not the criminal liability of onward transmission can be assigned to the person with HIV cannot be made as a matter of routine. In fact, the determining factor are the circumstances of each individual case, especially the legitimate expectations of both sexual partners. In any case, in a short-term, consensual sexual encounter both partners are responsible for the application of protective measures, regardless of the knowledge or the acceptance of one’s own status and the status of the other person. Attributing either partner as perpetrator or victim is not appropriate.

    Criminal proceedings regarding the transmission of HIV from consensual sexual intercourse do not contribute to HIV prevention. They can even be counterproductive in terms of the willingness of an individual to take an HIV test and in terms of open communication of sexual partners. In contrast, it is in the interest of the individual and society to increase willingness to take an HIV test.”

The full text of the statement (in German) can be found here.

US: New toolkit for lawyers defending HIV-related prosecutions now available

A new toolkit from the Center for HIV Law and Policy / Positive Justice Project, released earlier this month, provides a wealth of information for lawyers representing people living with HIV who are facing criminal prosecution based on HIV status.

The toolkit includes charts, articles, guidances, case law, legal analysis, scientific data and empirical citations, as well as quick-reference resources and links to longer reference materials.

The toolkit includes the following resources :

  • HIV Criminalization Fact Sheet
  • Guidance for a Legal Advocate Representing an HIV-Positive Client in a Criminal Exposure Case
  • Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure
  • Case Law Index
  • Legal Drafting Resources (featuring sample amicus briefs)
  • Secondary Resources
  • Sample Medical Expert Affidavit on HIV Transmission
  • Chart: Comparative Sentencing on HIV Criminalization in the United States
  • Chart: HIV, STIs and Relative Risks in the United States
  • Chart: HIV and Chronic Disease in the United States

Although created primarily as a resource for lawyers, other advocates, as well as people living with HIV in the United States, are likely to find the toolkit useful.

Download ‘Ending and Defending Against HIV Criminalization: A Manual For Advocates Volume 2: A Legal Toolkit: Resources for Attorneys Handling HIV-Related Prosecutions’ from the Center for HIV Law and Policy here.

 

More criminalization, further marginalization: Supreme Court's HIV non-disclosure decisions create viral underclass |

This is the second in a series of blog posts about the recent Supreme Court of Canada decisions about the criminalization of HIV non-disclosure. See the first post here, in which we wrote about the perverse, negative impacts of the decision for women living with HIV.

US: Scott A. Schoettes of Lambda Legal outlines the battle being waged in U.S. courts over HIV criminalisation in POZ Magazine

Scott A. Schoettes is the HIV project director for Lambda Legal, a longtime legal champion of HIV-positive people and LGBT civil rights. He filed a brief in The People of the State of New York v. David Plunkett, an HIV criminalization case heard by the New York Court of Appeals, the highest court in the state.

US: HIV Medicine Association calls for repeal of HIV-specific laws

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) has issued a strong statement urging the repeal of HIV criminalisation statutes in the United States.

The HIVMA statement, which represents physicians, scientists and other health care professionals across the United States, demands the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged non-disclosure, exposure and transmission
  • All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;
  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offences to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatising impact and negative clinical and public health consequences of criminalisation statutes and prosecutions.

The HIVMA statement is another extremely important development in the Positive Justice Project’s campaign to repeal HIV-specific criminal laws in the United States.

In March 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD) – a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US – issued a similar statement.

The full HIVMA statement, which can be downloaded here, is published below.

HIVMA URGES REPEAL OF HIV-SPECIFIC CRIMINAL STATUTES

(Approved: October 16, 2012)

The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) represents physicians, scientists and other health care professionals who practice on the frontline of the HIV/AIDS pandemic. HIVMA strongly advocates public policies that are grounded in the science that has provided the tools and knowledge base to envision a world without AIDS.

Stigma and discrimination continue to be major impediments to the comprehensive response necessary to address the HIV public health crisis. Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world.

In the U.S., HIV criminalization has resulted in unacceptable human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty-two states and two U.S. territories have HIV-specific criminal statutes. Thirty-two states have arrested or prosecuted individuals with HIV infection for consensual sex, biting and spitting. These laws and prosecutions unfairly target individuals with HIV infection and are not based on the latest scientific knowledge regarding HIV transmission, including the finding that transmission risk from biting or spitting is negligible.

Individuals with HIV infection can live healthy lives and approach near normal life expectancies with access to HIV care. Early diagnosis and effective management of HIV infection not only improves clinical outcomes for infected individuals but significantly reduces their risk of transmitting the virus to others. Laws that criminalize HIV infection discourage individuals from learning their HIV status and from receiving care. In doing so, they jeopardize the lives of HIV-infected individuals and place more individuals at risk of contracting an infectious disease that remains fatal if untreated.

HIV-specific criminalization fuels the stigma associated with HIV infection that slows efforts to combat the disease. Despite the availability of highly effective treatment for HIV infection, of the 1.1 million individuals living with HIV infection in the U.S., nearly 20 percent remain undiagnosed, only 37 percent are in care and just 25 percent have undetectable levels of the virus in their blood which makes it unlikely for them to be infectious to others.

All individuals must take responsibility for protecting themselves from HIV infection and other sexually transmitted infections (STIs). All persons engaging in unprotected or potentially risky sexual behavior are encouraged to discuss and disclose HIV and STI status except in situations where disclosure poses a risk of harm.

HIVMA Position: 

HIVMA urges a coordinated effort to address and repeal unjust and harmful HIV criminalization statutes. We support the following:

  • An end to punitive laws that single out HIV infection and other STIs and that impose inappropriate penalties for alleged nondisclosure, exposure and transmission;

    All state and federal policies, laws and regulations to be based on scientifically accurate information regarding HIV transmission routes and risk;

  • A federal review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses to identify harmful policies and federal action to mitigate the impact of these laws, including the repeal of these laws and policies or guidance for correcting harmful policies; and
  • Promotion of public education and understanding of the stigmatizing impact and negative clinical and public health consequences of criminalization statutes and prosecutions.

 

Lawyers critique Supreme Court ruling

Some criminal lawyers are worried that the Supreme Court has imposed on people prosecuted for not disclosing their HIV-positive status to sex partners a “significant evidentiary burden” to show that they used a condom and that their viral loads were low when they had sex. A pair of decisions handed down on Oct.

Dr Mark Tyndal on Supreme Court decision

On Oct. 5, the Supreme Court handed down a decision with major implications for HIV prevention and public health in Canada. In a 9-0 ruling, the court found that people infected with HIV must disclose their HIV status to their sexual partners.

Canada: Supreme Court makes bad law worse

The Supreme Court of Canada (SCC) said today that the duty for an individual with HIV to disclose can be dispensed only when a condom is used and the individual also has a low viral load.

This news story was updated five times over five hours to include community and political responses and analyses.  It now also includes my news story for aidsmap.com which provides an overview of the decision and its context.

Original post

The Supreme Court heard the two landmark cases (R v. Mabior and R v. DC) on February 8, 2012.

Download the Mabior decision here and the DC decision here.

This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations under s. 265(3)(c) Cr. C. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault (s. 273 Cr. C.). To obtain a conviction under ss. 265(3)(c) and 273, the Crown must show, beyond a reasonable doubt, that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose may amount to fraud where the complainant would not have consented had he or she known the accused was HIV‑positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm.

Two main criticisms of the Cuerrier test have been advanced: first, that it is uncertain, failing to draw a clear line between criminal and non‑criminal conduct, and second, that it either overextends the criminal law or confines it too closely — the problem of breadth. While it may be difficult to apply, the Cuerrier approach is in principle valid. It carves out an appropriate area for the criminal law — one restricted to “significant risk of serious bodily harm”. The test’s approach to consent accepts the wisdom of the common law that not every deception that leads to sexual intercourse should be criminalized, while still according consent meaningful scope.

The Cuerrier requirement of “significant risk of serious bodily harm” should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV. This view is supported by the common law and statutory history of fraud vitiating consent to sexual relations, and is in line with Charter values of autonomy and equality that respect the interest of a person to choose whether to consent to sex with a particular person or not. It also gives adequate weight to the nature of the harm involved in HIV transmission, and avoids setting the bar for criminal conviction too high or too low. If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relations under s. 265(3)(c).

The evidence adduced in this case leads to the conclusion that, as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used. This general proposition 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 Court’s decisions in these two appeal cases will have profound implications not only for people living with HIV, but also for Canadian public health, police practice and the criminal justice system.

The CBC has a good, basic overview of the 9-0 decision – including video – here.

My initial thoughts on risk

My first reading of the Mabior decision (the main Supreme Court ruling) leaves me with these initial thoughts.

We now have a new SCC phrase – “realistic possibility of HIV transmission” – to debate in court, because the ‘condoms AND low viral load’ ruling is actually based on the facts of the Mabior case alone.

The focus on viral load has somewhat backfired, resulting in this very conservative ‘belt and braces’ ruling. By highlighting the 052 study result (96%) and comparing with the Cochrane condom study (80%) the SCC ruled that not just condoms but condoms with a low viral load (which the SCC appears to define as below 1500 copies/ml) results in no “realistic possibility of HIV transmission”.

Nowhere in the decision is there a discussion of the relative risks of the types of sex (oral, vaginal, anal) or the position of the person with HIV (insertive, receptive), I suppose because Mr Mabior only had insertive vaginal sex.  But still the risk of HIV transmission with a high viral load and no condoms via insertive vaginal sex is estimated by the CDC to be just 5 per 10,000 exposures (i.e. 1-in-2000).  Reduce that already low risk by either 80% or 96% and surely there is still no “realistic possibility of HIV transmission.”

This is, of course, better than the blanket disclosure requirement regardless of risk argued for by the Crown, but does it really create any more clarity?

This will likely mean more convictions unless a good defence lawyer brings in a good expert witness to state that unprotected sex with a low viral load is not likely to be considered to result in a “realistic possibility of HIV transmission.”

No doubt the Canadian HIV/AIDS Legal Network will provide a much more thorough analysis in the days to come.  Their intial response, via Twitter: “… a profoundly disappointing, damaging decision. And internally inconsistent as well.”

Supreme Court of Canada rules that condoms alone do not prevent a ‘realistic possibility’ of HIV transmission (originally published at aidsmap.com)

The Supreme Court of Canada stated on Friday that individuals who know they are HIV positive are liable to criminal prosecution for aggravated sexual assault if they do not disclose this fact prior to sex that may risk a “realistic possibility of transmission of HIV”.

The unanimous decision rejected the Government’s argument that there should be a blanket law requiring people with HIV to disclose regardless of the risk, stating that the duty for an HIV-positive individual to disclose can be exempted, but only when a condom is used and the individual also has a low viral load.

The court also reaffirmed the 1998 Supreme Court ruling (R v Cuerrier), which established that a person who knows they are living with HIV has a duty to disclose their HIV-positive status before engaging in conduct that poses a ‘significant risk’ of HIV transmission.

Non-disclosure (regardless of whether this is active deceit or simply no verbal discussion of HIV risk) will continue to be treated as fraud that invalidates consent to sex. If it can also be shown that the sexual partner would not have consented had they known the accused was HIV positive, this is considered aggravated sexual assault, which carries a maximum sentence of life imprisonment and registration as a sex offender.

‘Significant risk’ versus ‘realistic possibility’

Chief Justice Beverley McLachlin, writing the decision for the court, appreciated that the 1998 Cuerrier decision was not explicit enough regarding what constitutes a ‘significant risk’ of HIV transmission and acknowledged that this has led to inconsistent and overly broad interpretations by Canada’s police and lower courts.

Although the 1998 decision had suggested that the “careful use of a condom” may lower the risk so that it is no longer ‘significant’, this was not binding. In recent years, courts have convicted HIV-positive individuals for having sex with a condom and/or oral sex alone while others have been acquitted for unprotected anal sex.

The two cases under review by the Supreme Court – R v Mabior and R v DC  – had previously been subject to rulings at the Courts of Appeal of Manitoba and Quebec, respectively, which found there was no duty to disclose when a condom was used or when the individual with HIV had an undetectable viral load at the time of the alleged exposure.

A 2011 study, not cited the by the court, found that the lack of clarity over the duty to disclosewas resulting in “anxiety [and] confusion” for people living with HIV and led to “contradictory HIV counselling advice” by healthcare workers.

In setting the new precedent, the court stated that “condom use is not fail-safe” and referred to a 2002 Cochrane systematic review of condom effectiveness in reducing heterosexual HIV transmission which concluded that consistent use of condoms results in 80% reduction in HIV incidence.

Despite also noting the results of the HPTN 052 study, the court referred to expert witness testimony from the original 2008 trial, which stated that relying on a low or undetectable viral load that results from antiretroviral therapy was not “a safe-sex strategy”.

“However, on the evidence before us, the ultimate percentage risk of transmission resulting from the combined effect of condom use and low viral load is clearly extremely low – so low that the risk is reduced to a speculative possibility rather than a realistic possibility,” wrote Chief Justice Beverley McLachlin for the court.

The court did not set an actual level for an acceptably low viral load, but offered a description, based on the evidence of the Mabior case. “When a patient undergoes antiretroviral treatment, the viral load shrinks rapidly to less than 1,500 copies per millilitre (low viral load), and can even be brought down to less than 50 copies per millilitre (undetectable viral load) over a longer period of time. This appears to be scientifically accepted at this point, on the evidence in this case.”

Nevertheless, the court left open the possibility of adapting to future changes in scientific knowledge about HIV-related risks and the long-term effects of living with HIV, which it noted was “indisputably serious and life-endangering. Although it can be controlled by medication, HIV remains an incurable chronic infection that, if untreated, can result in death.”

More prosecutions likely

The court also addressed – and firmly rejected – public health arguments against overly broad criminalisation of HIV non-disclosure and potential or perceived HIV exposure. “The only ‘evidence’ was studies presented by interveners suggesting that criminalization ‘probably’ acts as a deterrent to HIV testing,” wrote Chief Justice McLachlin. “The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.”

Legal scholar, Isabel Grant, whose recent article exploring the issues faced by the Supreme Court was extensively referred to in the R v Mabior decision told Postmedia news that she expected to see more criminal cases under the new interpretation of the law. “They pretty much went as far as they could have gone in the direction of criminalization,” she noted.

A coalition of HIV and human rights organisations led by the Canadian HIV/AIDS Legal Network, which acted as interveners in the two cases, issued a statement saying it was “shocked and dismayed” at the ruling, calling the decision “a major step backwards for public health and human rights”.

They noted that the court’s standard of a ‘realistic possibility’, was “an illusory limit to the criminal law [that] blatantly ignores solid science and opens the door to convictions for non-disclosure even where the risk of transmission is negligible, approaching zero”.

In making the rulings, the court upheld an appeal court decision to acquit ‘D.C.’, a Montreal woman accused of not disclosing her HIV status to her former partner, based on the fact that she had an undetectable viral load and used a condom, but reinstated three convictions against former Winnipeg resident, Clato Mabior, who was deported to South Sudan in February.

Political reactions

Ipolitics.ca now has the first reactions from Canadian politicans to the Supreme Court ruling

In response to the ruling, NDP deputy leader and health critic Libby Davies said she believes the Supreme Court in its decision tried to respect both issues of public health and the rights of those living with HIV-AIDS. But she did have “some concern” about how far the decision goes.

“The issue of criminalization is sometimes very difficult,” she said. “It’s like a stigma that hangs over people and so that’s something that we want to avoid. So I want to look more carefully at the decision and I know that our – our critics involved with this file will also look at the decision more carefully.”

She added that prevention, education and support for those living with HIV and AIDS remain the most important things.

Liberal leader Bob Rae said he’s not in the habit of “judging the judges” but added “I don’t think that’s an unreasonable decision by the court at all.”

CBC interview with Richard Elliott / Canadian HIV organisations react

“I think the court has come just shy of basically saying if you have HIV you’re a potential criminal,” Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, tells the CBC, helping the confused presenter understand that this ruling does not improve the situation for people living with HIV, nor those at risk.

  

He is also quoted extensively in this Globe and Mail news story

“It is a step backward for public health and for human rights,” Mr. Elliott said. “The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000.” The approach adopted by the court, “gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV,” Mr. Elliott said in an interview

The Montreal Gazette also interviewed Alison Symington, Senior Policy Analyst at the Canadian HIV/AIDS Legal Network.

Meanwhile, Marcus McCann’s news story in Xtra.ca now has reactions from many in the HIV world, all of whom are reeling from today’s decision.

Jay Koornstra is the director of Bruce House, a charity which provides housing to people living with HIV in Ottawa. He says that the Supreme Court failed to consider “the realities of HIV today.”

“Everyone has a responsibility to protect themselves and others. I don’t think that this advances that approach to health.”

He also worries that the decision will give HIV-negative people the impression that they can simply assume partners are HIV-negative until being told otherwise — a poor strategy for protecting their health.

Tim McCaskell, another long-time AIDS activist, says that the law is out of step, requiring disclosure in cases where HIV-transmission is unlikely.

“Maybe we need two sets of safer sex guidelines. One to keep yourself and others healthy, and another to keep you out of jail,” he says.

Since HIV nondisclosure was criminalized, defence lawyers have looked for ways to limit the law’s scope. The introduction of evidence of low viral load was one such way, especially in cases where condoms hadn’t been used. But that’s going to be more difficult now, says Micheal Vonn of the BC Civil Liberties Association.

“The advances that we were making at the lower courts have been cut off at the knees,” she says. “It’s a huge setback. Massive.”

Meanwhile, AIDS service providers have been advising clients to use a condom in order to avoid the risk of prosecution — but with today’s decision, that may no longer be enough.

“You can imagine the horror show that service providers are waking up to today,” she says. “There’s so little concern [in the judgment] about what is going to happen to HIV positive people, many of whom have been very responsible about condom use.”

McCaskell also laments that the court missed an opportunity to clarify the law for all types of sex, rather than just vaginal sex between a man and a woman.

“The first email I got was, ‘Do I have to use a condom when I give a blowjob?’ The answer is, ‘We don’t know.’”

Or, as Koornstra says, “The grey area is still grey.”

McCaskell will now turn his attention to winning prosecutorial guidelines, which would come from the provincial Ministry of the Attorney General.

Cécile Kazatchkine of the Canadian HIV/AIDS Legal Network goes a step further.

“We are calling on police and crown prosecutors not to prosecute people when a condom is used or when there is a low viral load, because we don’t believe it’s in the public interest,”  Kazatchkine says. “Just because the Supreme Court has given the courts the power to prosecute these cases, it doesn’t mean that they should.”

Failing that, HIV-positive people and their allies could lobby the federal government to change the law, Vonn points out. But given the Conservative government, “it seems unlikely at the current juncture that there would be any taste for this,” she says.

While the cases will have wide-ranging implications for HIV-positive people and those that love them, McCaskell called the acquittal of DC a “glitter in the gloom.”

“In terms of that personal story, this is good. This woman has been dragged through hell and back, and now she’s been acquitted. But she was acquitted on a technicality,” says McCaskell.

Kazatchkine agrees.

“Justice has been done in that particular case.”

 
Coalition of interveners press release

(Download the pdf here)

UNJUST SUPREME COURT RULING ON CRIMINALIZATION OF HIV MAJOR STEP BACKWARDS FOR PUBLIC HEALTH AND HUMAN RIGHTS

 

October 5, 2012 — As a coalition of interveners, we are shocked and dismayed at today’s ruling by the Supreme Court of Canada that says that even the responsible use of a condom does not protect a person living with HIV from rampant prosecution. The Court’s judgments in R. v. Mabior and R. v. D.C., two cases relating to the criminalization of HIV non-disclosure, are a cold endorsement of AIDS-phobia. They will stand as an impediment to public health and prevention, and add even more fuel to stigma, misinformation and fear. And they place Canada once again in shameful opposition to standards set out by international human rights bodies, UNAIDS and the Global Commission on HIV and the Law.

In its decisions, the Court purports to uphold its own 1998 decision standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But this is an illusory limit to the criminal law. It blatantly ignores solid science and opens the door to convictions for non-disclosure even where the risk of transmission is negligible, approaching zero. Even in 1998, when there was less science quantifying the small risks of HIV transmission than there is today and less effective treatment for HIV, the Supreme Court had ruled that condom-use might sufficiently reduce the risk below “significant” for the purpose of the criminal law. Yet now, 14 years later, despite significant advances in scientific knowledge, the Supreme Court decides condoms are not enough. In practice, today’s ruling means that people risk being criminally prosecuted even in cases where they exercised responsibility and took precautions, such as using condoms — which are 100% effective when used properly.

Adding to continued injustice, the Court’s actions will seriously undermine public health efforts. Criminalizing HIV non-disclosure in this way creates another disincentive to getting an HIV test and imposes a chill on what people can disclose to health professionals and support workers. People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads. Similarly, people not living with HIV need to be empowered to accept responsibility for their own health, and not proceed under a false sense of security that the criminal law will protect them from infection. In short, the Court’s actions will have deleterious effects not only on the lives and health of people living with HIV, but on all of us, through fostering a climate of fear and recrimination.

While we welcome the Court’s acquittal of D.C. — an acknowledgement of at least one miscarriage of justice — the onus must now fall to those protecting the health and defending the dignity of people living with HIV. We also call on Crown prosecutors to use their discretion and refuse to be complicit in injustice just because the Court gave them the power to do so. It is not in the public interest to prosecute people living with HIV where condoms have been used or where a person has a low or undetectable viral load. Prosecutions in such cases will only perpetuate misinformation, pander to prejudice and undermine efforts at HIV prevention and treatment.

Signed, the interveners:

Canadian HIV/AIDS Legal Network

HIV/AIDS Legal Clinic Ontario (HALCO)

Coalition des organismes communautaires québécois de lutte contre le sida (COCQSIDA)

Positive Living Society of British Columbia (Positive Living BC)

Canadian AIDS Society (CAS)

Toronto People with AIDS Foundation (PWA)

Black Coalition for AIDS Prevention (Black Cap)

Canadian Aboriginal AIDS Network (CAAN)

Canadian HIV/AIDS Legal Network responds

Richard Elliott, the Executive Director of the Canadian HIV/AIDS Legal Network, and one of the interveners in the Mabior case has this to say (via this blog post) about today’s decision.

We are dismayed and shocked by the Supreme Court’s decision. It is a step backward for public health and for human rights. The Court purports to maintain the current standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But given today’s judgment, this is an illusory limit to the criminal law. The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000. Such an approach gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV. In practice, the Court’s ruling means that people risk being criminally prosecuted even in cases where they took precautions such as using condoms – which are 100% effective when used properly. This decision will not only lead to continued injustice but undermines public health efforts. It creates another disincentive to getting an HIV test and creates a further chill on what people can disclose to health professionals and support workers. People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads.

And Marcus McCann who has been covering the case for Xtra.ca notes

The decision also clears the way for the Ontario Court of Appeal, which put off hearing appeals of two criminal cases pending today’s decision from the Supreme Court.

 The new rules will apply to poz folks whose cases have not yet gone to trial, and to cases which are under appeal, like those before the Ontario Court of Appeal. HIV-positive people who are already serving time for HIV nondisclosure cannot have these new rules applied retroactively.

Judge's remarks over spitting irk Sask. police group

The risk of disease from being spit upon is so low that fearing it makes police work more stressful than it needs to be, a La Ronge judge says.

Should courts force those with HIV to tell their sex partners?

The advances in HIV-AIDS treatment in the last decade have been nothing short of amazing, transforming the virus from what was once a death sentence to what is now a manageable disease. Antiretroviral medications keep levels of the virus in carriers so low, they are often almost undetectable, greatly reducing the risk of ever passing the virus on to sexual partners.