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.
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.
The Supreme Court heard the two landmark cases (R v. Mabior and R v. DC) on February 8, 2012.
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.
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.
“Justice has been done in that particular case.”
Coalition of interveners press release
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
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.
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.
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.
A court in Denmark has acquitted a person living with HIV who had previously been found guilty under the country’s now-suspended HIV-specific criminal statute. The man’s sentence was reduced to six months, due to his conviction for other, drug-related, offences.
In its brief ruling, published below, the Eastern High Court reasoned that since there is now evidence that HIV is not a “life-threatening condition” he could no longer be guilty of exposing another to a “life-threatening illness”.
The Danish Justice Minister suspended the law in February 2011 noting that HIV can no longer be considered life threatening because, for people living with HIV in Denmark who are on treatment, HIV has become a manageable, chronic health condition.
According to sources in Denmark, it is believed that the courts are in the process of reviewing all HIV-related criminal cases from 2007 – this is the year that National Board of Health informed the Ministry of Justice that HIV was no longer a life threating illness (as defined in the law), even though it took the Ministry another four years to suspend the law.
This would make Denmark the first country in the world to fulfill the fifth recommendation relating to HIV criminalisation of the Global Commission on HIV and the Law.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.
Eastern High Court Prosecutor v. Jackie Madsen, 7 August 2012 (unofficial translation).
Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012
Transcript the Eastern High Court book of judgments
Delivered on August 7th 2012 by the Eastern High Court’s 13th department
(country judges (names) with lay assessors)
Prosecutor v. Jackie Madsen
(Lawyer (Name)… )
Frederiksberg Legal verdict December 20th 2007 (…) is being appealed by the prosecution based on claim of acquittal of violation of Penal Code § 252 paragraph 2 (issue 2) and appeasement
Defendant has alleged alleviating circumstances.
High Court’s reasoning and result
Since HIV could not, at the time of the crime is crime, be considered a life-threatening illness according to the Penal Code § 252, paragraph 2, the defendant is acquitted for issue 1 in accordance with the prosecution’s claim on this matter.
As a result of this, the sentence is reduced to 6 months of imprisonment. In the decision of the sentence, the court has taken into account (put weight on) the amount of heroin and that the accused himself was a drug addict.
Moreover, the verdict is confirmed.
It is thus decided:
The District Court’s judgment in the case against Jackie Madsen is altered so that he is punished by imprisonment for 6 months.
The Treasury must pay the costs of the High Court.
The accuracy of the transcript is confirmed. Eastern High Court…
Below is an excellent editorial by Henriette Laursen, director of AIDS-Fondet, and Susan Cowan, staff specialist at Statens Serum Institut, on the current state of HIV science and how it should impact the Danish Government’s deliberations on whether or not to enact a new HIV-specific criminal statute following the previous statute’s suspension in February 2011.
Henriette tells me that the Government’s deliberations are still ongoing and that there will be no decision before the end of summer. But, she notes, “I guess the longer [Denmark is] without a penal code the easier [it is] to prove the country can live without [an HIV-specific law].”
The original Danish article, published in Information on 12th June 2012, can be found here. This is my English translation (with the assistance of Google translate) which might not be completely faithful to the Danish. Nevertheless, the ideas and arguments in the editorial are unchanged from the original.
Safer sex without a condom
The Ministry of Justice’s proposal to revise the Penal Code on HIV, may have the consequence that those who can infect cannot be punished, and those who may be punished, cannot infect
In medical records, you can now find advice from infectious disease physicians to HIV patients which say thinks like: “Has been informed that (s)he has a sustained fully suppressed HIV and can drop the condom.”
‘Safer sex’ for a person living with HIV today is not just sex with a condom, but also sex while under medical HIV treatment.
Medical HIV treatment today has the status of an adequate protection against infection in line with – or even more effective – than condom use. It is therefore completely by the book for the doctor to inform their successfully treated patients that they can drop the condom – in order to have children the old fashioned way, for example.
This knowledge, however, is not so well known outside of the medical field. Not least in the context of both the past and the present Government’s deliberations on what to do with the Danish HIV-criminal provision which is currently suspended because HIV is no longer a life threatening illness.
As an alternative to the former penal provision working group under the Ministry of Justice suggested that HIV-infected persons who know their HIV status should be punished by up to two years in prison for having sex without a condom. This is completely without regard to whether the patient could possibly infect anyone due to the effects of medication.
To date, fifteen years after the introduction of effective HIV treatment, not a single case has been documented where a well-treated person with HIV has infected another person through sex.
Infection comes rather from HIV-infected persons who do not yet know their HIV status and therefore not in medical care. Due to their lack of knowledge that they are HIV-positive, for good reason these people are not penalized.
The infectious cannot be punished
If implemented the working draft statute broadly means that those who can infect cannot be punished, and those who may be punished, cannot infect.
The Working Group did not wish to limit the provision to people with HIV who actually are infectious, because it would be too difficult for the prosecution to prove this during a trial. [Editor’s note: this is exactly the same weak argument that the Manitoba and Ontario Crown Prosecutors used in the Canadian Supreme Court.]
The Working Group evidently believes that that the same difficulties are not present when it comes to prove whether or not a condom was used.
It seems quite odd that it would be easier to prove what happened between two people in a bedroom than through medical records to determine whether the person with HIV at the time was under HIV treatment, where outcomes from regular blood tests can show that HIV is reduced to a degree which means that they cannot infect.
We would ask that future legislation is based on current knowledge about HIV. Since the implementation of the previous HIV criminal law there have been so many advances in the field that it no longer makes sense to criminalise HIV transmission.
HIV should now be equated with other serious infectious diseases and not have its own special rule in criminal law. HIV should instead preferably be fully addressed in the health system.
It should also be taken into consideration that the criminalisation of HIV transmission in our opinion does not help when it comes to limiting the spread of HIV. On the contrary, the fear of punishment means people hide and are not tested for HIV. It is not only harmful to the individual, who is at risk of illness and even death, but also for prevention.
If Government and Parliament, however, focused on work to clear the prejudice and stigmatisation of people living with HIV out of the way by implementing a decriminalisation of HIV, it would be of great benefit for prevention.
The time has come to repeal the HIV provision in the Penal Code. Medical advances mean that HIV is no longer the same kind of illness that it was 10 and 20 years ago.
Some people may be reassured if a small part of the Criminal Code is preserved to allow prosecutions for very egregious cases when a person knows their HIV status, is not on medical treatment, and in a reckless manner repeatedly and knowingly exposes others to infection. But to introduce the provision as proposed is not only pointless, but downright harmful for HIV control in Denmark.
World leading scientists and medical practitioners joined legal experts and civil society representatives to discuss the scientific, medical, legal and human rights aspects of the criminalization of HIV non-disclosure, exposure and transmission. The meeting, organized by UNAIDS, took place in Geneva from 31 August to 2 September.
On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
Denmark’s Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called ‘HIV law’ – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be revised or abolished.
The move was announced today in a press release by AIDS-Fondet (AIDS Foundation) and covered in the gay magazine, Out and About. (Both of these are in Danish, and so I’m relying primarily on Google Translate, although colleagues in Denmark have also been in touch to tell me the exciting news.)
Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.
According GNP+’s Global Criminalisation Scan here have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.
Today’s announcement came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.
“The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero.”
In his reply, Justice Minister Lars Barfoed explains the history of the legislation and then quotes the Health Protection Agency about HIV ‘risk’ and ‘harm’.
“Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients’ general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this…The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable.”
He goes on to say that the law as it is currently written – casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appears to be obsolete and that the working group must consider whether to amend, or totally rewrite, Article 252.
The working group will comprise Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General. It is believed they will come to a conclusion later this year. (Update Feb 22: My contact at AIDS-Fondet tells me this process will take place much sooner, within the next two months.)
In their press release AIDS-Fondet notes that it has been working on changing the law for years and so this development is very welcome.
We hope this suspension is the beginning of the end of the so-called HIV Criminal Law. This criminal provision is in itself a barrier to prevention, and there has also long been a need for the improved treatment of HIV-people to be reflected in the Penal Code, says Henriette Laursen, AIDS-Fondet’s director.
Two of Denmark’s foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have previously called for the law’s abolition.
An excellent new book on the criminalisation of HIV transmission by Dr Matthew Weait, senior lecturer in law and legal studies at Birkbeck College, University of London, has recently been published.
The book, Intimacy and Responsibility: The Criminalisation of HIV Transmission,was welcomed by HIV clinicians and advocates at its February 12th launch at Waterstone’s bookshop at the Wellcome Institute in London.
My story on the book and its launch from aidsmap.com follows comments from Dr Catherine Dodds, a research fellow at Sigma research, University of Portsmouth, who has studied the impact of criminal prosecutions in affected communities, I’m including them here.
In her brief talk, Dr Dodds provided an incisive overview of not just the book, but also Dr Weait’s immeasurable contributions to the debate on the criminalisation of HIV transmission over the past decade:
When criminal prosecutions became a reality in England and Wales Matthew encouraged the development of a network of activists,academics, HIV service providers, doctors, politicians, lawyers, civil servants, researchers and journalists and anyone who was interested, frankly… who might be able to collate their knowledge and their talents and their energy to act in whatever way was possible to challenge, clarify and respond to the developments.
As a part of developing this network, he raised the funds from the Economic and Social Research Council to host a series of seminars at Keele University in Stoke and at Birkbeck College here in London. People attending those seminars exchanged knowledge and experiences. They offered a space where people were encouraged to think out loud.
What abides with me from attending those seminars is the way that those attending simply shared their humanity – in all of its strength and frailty and warmth – and that had a great amount to do with the kind of environment that Matthew created. It was an opportunity for learning and planning and thinking and sharing unlike any I have ever known.
Whether it is setting up message-boards so that people can share information and thoughts instantly – or making the time to speak with (and listen to) groups of people with diagnosed HIV, or with groups of medical or legal professionals – what Matthew has always wanted to do is to get people talking about criminal prosecutions for the transmission of HIV. Because he learned, and he taught me to see, that once people chew it over and consider it for a while – the obviousness of applying the criminal law to such situations, tends to grow a little less obvious.
In writing Intimacy and Responsibility, Matthew has effectively thrown that discussion open to a much broader audience. I can tell you from personal experience, that if you want to get noticed – sit on the tube and read this book. Never have I been so aware of so many people being so aware of what it is I am reading. Perhaps they are intrigued by its cover, and on a number of occasions, I have noticed continued glances and thoughtful expressions that indicates they are thinking and wondering about what such a book on such a topic might hold between its covers.
What Matthew does in Intimacy and Responsibility is to pull together and present information from a huge array of different academic disciplines because these are all required in order to begin untangling the complexities of such prosecutions. While a different writer may have tried to dissect this application of the law at the expense of considering what it is to be one of the people involved in such cases, it is from the standpoint of those very people – both complainant and defendant – that Matthew’s main argument begins.
He effectively opens a window into the lived experience of the trial, by closely analysing the transcript of an early prosecution for reckless sexual transmission of HIV. It is here that he begins to forensically dig into the reality of a criminal judicial process that fails to make sense of what it is to be human. He muses that in the criminal justice system’s pursuit of ensuring that blame is laid – the system has perhaps lost sight of what it is to make human society better – by losing sight of (or perhaps not even considering) what is required to reduce HIV transmission in the midst of this epidemic.
This isn’t an easy discussion to initiate, by any means. Matthew is quite frank in the pages of his book that he knows that the odds stack up against his position, and that many people will have a gut instinct about the morality and the criminality of such situations. But despite the uncomfortableness that it might cause, he argues that slowing the HIV epidemic requires us to prioritise the public good. This in no way diminishes Matthew’s recognition of the pain, the hurt, the fear and the distrust that is likely to be a part of the experience of both complainants
and defendants involved in such cases.
In extending this debate, Matthew’s book asks us to consider what our own priorities are. It asks us to engage actively as citizens who think about how our criminal justice system works, and who ask if it should be the place to resolve all of the issues in our complicated, intimate, messy, sloppy, passionate, tangled, painful human lives. As he says, and I paraphrase here a bit: ‘The fact that we inhabit a society… in which an ever more extensive and punitive system of criminal law is understood as the mechanism that can provide the solution, does not mean that we should allow our imaginations to rot’.
The extent to which Matthew has extended his leadership, and energy and intellectual capacity and humanity to challenging and responding to this application of the criminal law cannot be overstated. This book incorporates and reflects that wider project and it will prove to be a tremendous resource for many years to come.
Decriminalise reckless HIV transmission, argues HIV legal expert
A new book on the criminalisation of HIV transmission by Dr Matthew Weait, senior lecturer in law and legal studies at Birkbeck College, University of London, argues that current English law has “the potential to do more harm than good” if “its primary purpose is to prevent onward transmission.”
The book, Intimacy and Responsibility: The criminalisation of HIV transmission, was welcomed by HIV clinicians and advocates at last week’s central London launch, which highlighted the impact of criminal prosecutions on the ability of doctors and researchers to work effectively.
Dr Jane Anderson, consultant physician at Homerton Hospital, and lead author of the British HIV Association’s (BHIVA) briefing paper on HIV transmission, the law and the work of the clinical team said that the spectre of criminal prosecutions had affected the way the NHS provided services to HIV-positive patients “in terms of care, advice and confidentiality” and had created “a great deal of anxiety and concern.”
She said that many healthcare staff working with HIV-positive patients felt that “the law was looking over people’s shoulders” and that it had significantly affected the doctor-patient relationship since doctors could potentially be asked to testify as expert witnesses for either prosecution or defence.
Dr Anderson also highlighted the impact recent prosecutions have had on research. “The rigour of our research has been coloured by prosecutions,” she said. “We have had to reconsider whether we ask certain questions whilst researching sexual behaviour in the current climate.”
Also speaking at the launch was Dr Catherine Dodds, a research fellow at Sigma research, University of Portsmouth, who has studied the impact of criminal prosecutions in affected communities. She said that in his book, Dr Weait “asks us to engage actively as citizens who think about how our criminal justice system works, and who ask if it should be the place to resolve all of the issues in our complicated, intimate, messy, sloppy, passionate, tangled, painful human lives.”
Dr Weait’s book critically examines and deconstructs the English criminal law’s approach to criminal prosecutions for reckless HIV transmission. In one of the book’s most revelatory chapters, he uses transcripts from the trial of Feston Konzani to show how the English criminal law reduces complex human thoughts, feelings and interactions to “over-simplified accounts of responsibility and irresponsibility, of guilt and innocence.”
The book also examines concepts of harm, risk, recklessness, consent, and responsibility and strongly suggests that the criminal law is ill-equipped to understand these concepts pragmatically. If the primary purpose of the criminal law is to prevent onward transmission, he argues, then it “has the potential to do more harm than good.”
Edwin Cameron, Justice of the South African Supreme Court of Appeal, and one of the world’s leading figures on HIV and AIDS and the law, writes in the book’s preface that “Weait’s premise is that criminal law and criminal justice should be used for the public good rather than as means of securing reparation for particular individuals.”
“If his argument is correct,” he continues, “then we must question criminal laws that may discourage people from HIV testing, or from being candid about their sexual history when confiding in health care workers. We must question whether it is good to impose criminal liability when media coverage is often sensational and inaccurate – with the effect of demonising all with HIV, and marking them as potential aggressors. We must question whether such laws acknowledge the difficulties that some living with HIV – particularly women, who may risk violence and expulsion from the home – have in negotiating safer sex.”
“And we must question the public ‘good’ that comes from ascribing sole responsibility for transmission (as such laws do) to the person with HIV, thus attenuating the partner’s responsibility for avoiding transmission – especially in an epidemic when all should be aware of the risks of unprotected sex,” writes Mr Justice Cameron.
The best way to promote “a more authentic and socially beneficial approach to the meaning, practice and expression of responsibility than that which the law constructs and reinforces,” concludes Dr Weait “is to decriminalise the reckless transmission of HIV.”
Weait M. Intimacy and Responsibility: The criminalisation of HIV transmission ISBN 978-1-904385-70-7; Routledge-Cavendish, 2007.