The lack of clarity over when a person with HIV has a legal obligation to disclose their HIV-positive status to a sexual partner is resulting in “anxiety, confusion and contradictory HIV counselling advice,” according to a new study on the impact of HIV criminalisation in Canada.
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.
The overwhelming majority (70%) of HIV-negative and untested men (69%) in the United States support prosecutions for not disclosing known HIV-positive status before sex that may risk HIV transmission, according to a new study by Keith J. Horvatha, Richard Weinmeyera and Simon Rosser at the University of Minnesota, Minneapolis. Even more disturbing is the fact 38% of HIV-positive men endorsed criminalisation.
The most worrying finding is that suppport of non-disclosure laws strongly suggested a reliance on disclosure as an HIV prevention method. As I have discussed in HIV and the criminal law, this is unreliable and problematic.
A new report, launched at AIDS 2010 in Vienna last month, recommends that the Ontario Ministry of the Attorney General establish a consultation process to inform the development of prosecution guidelines for cases involving allegations of non-disclosure of sexually transmitted infections, including HIV.
HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario contributes to the development of an evidence-informed approach to using the criminal law to address the risk of the sexual transmission of HIV infection in Ontario, and offers the most comprehensive, current discussion of the criminalisation of HIV non-disclosure in Canada.
The report was triggered by the absence of policy-based discussion of this issue amongst key decision makers in government and by community concerns about the intensified use and wide reach of the criminal law in circumstances of HIV non-disclosure.
In Canada, people living with HIV have a criminal law obligation to disclose their status before engaging in activities that pose a “significant risk” of HIV transmission. The report emphasises that uncertainties associated with that obligation and interpretations of the obligation that are not informed by current scientific research on HIV transmission risks are foundational to current problems in the use of the criminal law to regulate the risk of the sexual transmission of HIV and explores various forms of evidence relevant to a thorough policy consideration of the use of the criminal law in situations of HIV non-disclosure in sexual relationships.
Title: The criminal law about sex and HIV disclosure is not clear
What is this research about?
According to the Supreme Court of Canada, HIV-positive people are required to disclose their status before engaging in sexual activities that pose a “significant risk” of transmitting HIV to a sex partner. Canadian courts, however, have yet to clearly define what sex acts, in what circumstances, carry a “significant risk.” This has led to an expansive use of the criminal law and created a problem for people with HIV—they can face criminal charges even though the law is not clear about when they must tell sex partners about their HIV. For example, people with HIV who are taking anti-HIV medications are much less likely to transmit HIV during sex, even where no condoms are used. But Ontario police and Crown Attorneys continue to interpret “significant risk” broadly. In fact, charges have been pursued in cases where, on a scientific level, there is little risk of HIV transmission.
This uncertainty has created problems not only for people with HIV but also for public health staff, and health care and social service providers. It has challenged these front-line workers in their attempts to counsel and support people with HIV. It has also caused many people with HIV to be further stigmatized. The media, in its coverage of these cases, has tended to exaggerate the risk of HIV transmission at a time when more and more experts have come to think of HIV as a chronic and manageable infection.
Despite these problems, and over 100 criminal cases in Canada, there has been a lack of evidence to inform public discussion about this important criminal justice policy issue. In Ontario, policy-makers have not weighed in publicly on the criminalization of people who do not reveal to their sex partners that they have HIV.
What did the researchers do?
A project team, led by Eric Mykhalovskiy, Associate Professor in the Department of Sociology at York University, set out to explore how the criminal law has been used in prosecutions involving allegations of HIV non-disclosure. The team included members of community organizations in Toronto and front-line workers, some of whom are living with HIV. Their goal was to create evidence and propose options to guide policy and law reform. They created the first national database on criminal cases of HIV non-disclosure in Canada. Professor Mykhalovskiy interviewed over 50 people with HIV, public health staff, and health care and social service providers to find out how the criminal law is affecting their lives or their work—another Canadian first.
What did the researchers find?
From 1989 to 2009, Canada saw 104 criminal cases in which 98 people were charged for not disclosing to sex partners that they have HIV. Ontario accounts for nearly half of these cases. Most of the cases have occurred since 2004. Half of the heterosexual men who have been charged in Ontario since 2004 are Black. Nearly 70% of all cases have resulted in prison terms. In 34% of these cases, HIV transmission did not occur.
Looking at the cases in Ontario and Canada, the researchers found inconsistencies in the evidence courts relied on to decide whether a sex act carried a significant risk of HIV transmission. They also found inconsistencies in how courts have interpreted the legal test established by the Supreme Court, and inconsistencies between court decisions in cases with similar facts. It appears, in some cases, that police and Crown prosecutors have not been guided by the scientific research when deciding whether to lay charges or proceed with a prosecution.
Because it is important to understand the scientific research when assessing whether there is a “significant risk” of HIV transmission during sex, the researchers included in their report a succinct summary of the leading science. The risk, in general, is low. Activities like unprotected sexual intercourse carry a risk that is much lower than commonly believed. Most unprotected intercourse involving an HIV-positive person does not result in the transmission of HIV. But the risk of transmission is not the same for all sex acts and circumstances. Antiretroviral therapy, however, can reduce the amount of HIV in a person’s bloodstream and make the person less infectious to their partner. Also, because of antiretroviral therapy, HIV infection has gone from being a terminal disease to a chronic, manageable condition in the eyes of many experts and people living with the virus.
Many people with HIV who were interviewed remain concerned that even if they disclose their HIV, their sex partners might complain to police. Health care and service providers stated that they are confused by the vagueness of the law. They also stated that criminalizing HIV non-disclosure prevents people from seeking the support they need to come to grips with living with HIV and disclosing to partners. But people with HIV and their providers have many suggestions for improving public policy and the law. The “significant risk” test needs to be clarified. The public health and criminal justice systems need to work together. And policies and procedures to guide Crown Attorneys need to be put in place.
How can you use this research?
Policymakers have several options to respond to the lack of clarity in the law and the resulting expansive use of the law. They can continue to let police, Crown Attorneys, and courts deal with cases as they arise. They can work to amend the Criminal Code. But the best solution, in the short term, would be the development of policy and procedures to guide Crown Attorneys working on these types of cases. The Ontario Ministry of the Attorney General should establish a consultation process to help develop policy and procedures for criminal cases in which people have allegedly not disclosed that they are HIV-positive to their sex partners.
What you need to know:
The criminal law can lead to very serious consequences for people who are charged or convicted. So policymakers need to make sure that the criminal law about HIV disclosure is clear and clearly informed by scientific research about HIV transmission. They also need to look to research to assess whether the law is having unintended consequences that get in the way of HIV prevention efforts.
About the Researchers:
Eric Mykhalovskiy is an Associate Professor and CIHR New Investigator in the Department of Sociology. Glenn Betteridge is a former lawyer who now works as a legal and health consultant. David McLay holds a PhD in biology and is a professional science writer.
This Research Snapshot is from their report, “HIV Non-disclosure and the criminal law: Establishing policy options for Ontario,” which was funded by the Ontario HIV Treatment Network and involved a research collaboration between York University, Canadian HIV/AIDS Legal Network, HIV and AIDS Legal Clinic (Ontario), Black Coalition for AIDS Prevention, AIDS Committee of Toronto, and Toronto PWA Foundation.
This selection of posters presented in Vienna follows up from my previous AIDS 2010 posting on the sessions, meetings and media reporting that took place during last month’s XVIII International AIDS Conference. I’ll be a highlighting a few others in later blog posts, but for now here’s three posters that highlight how the law discriminates; why non-disclosure is problematic to criminalise; and how political advocacy can sometimes yield positive change.
In Who gets prosecuted? A review of HIV transmission and exposure cases in Austria, England, Sweden and Switzerland, (THPE1012) Robert James examines which people and which communicable diseases came to the attention of the criminal justice system in four European countries, and concludes: “Men were more likely than women to be prosecuted for HIV exposure or transmission under criminal laws in Sweden, Switzerland and the UK. The majority of cases in Austria involved the prosecution of female sex workers. Migrants from southern and west African countries were the first people prosecuted in Sweden and England but home nationals have now become the largest group prosecuted in both countries. Even in countries without HIV specific criminal laws, people with HIV have been prosecuted more often than people with more common contagious diseases.”Download the pdf here.
In Responsibilities, Significant Risks and Legal Repercussions: Interviews with gay men as complex knowledge-exchange sites for scientific and legal information about HIV (THPE1015), Daniel Grace and Josephine MacIntosh from Canada interviewed 55 gay men, some of whom were living with HIV, to explore issues related to the criminalisation of non-disclosure, notably responsibilities, significant risks and legal repercussions. Their findings highlight why gay men believe that disclosure is both important and highly problematic. Download the pdf here.
In Decriminalisation of HIV transmission in Switzerland (THPE1017), Luciano Ruggia and Kurt Pärli of the Swiss National AIDS Commission (EKAF) – the Swiss statement people – describe how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law. A new Law on Epidemics removes Article 231, leaving only intentional transmission as a criminal offence, and will be deabted before the Swiss Parliament next year. Download the pdf here.
A remarkable amount of advocacy and information sharing took place during the XVIII International AIDS Conference held in Vienna last month. Over the next few blog posts, I’ll be highlighting as much as I can starting with a round-up of sessions, meetings, and media reports from the conference. A separate blog post will highlight posters, a movie screening and some inspirational personal meetings.
Sunday: Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward
A meeting that I co-organised (representing NAM) along with the Global Network of People Living with HIV (GNP+) and the Canadian HIV/AIDS Legal Network received quite a lot of coverage.
Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward was a great success with many of the 80+ attendees telling me it was Vienna highlight. The entire meeting, lasting around 2 1/2 hours, has been split into eight videos: an introduction; six presentations; and an audience and panel discussion. The entire meeting can also be viewed at the NAM and Legal Network websites, with GNP+ soon to follow.
Richard Elliott of the Canadian HIV/AIDS Legal Network, Moono Nyambe from GNP+ and UNAIDS’ Susan Timberlake – all of whom took part in the meeting – were interviewed for a piece in Canada’s Globe and Mail, with the headline, U.S., Canada lead world in prosecuting those who transmit AIDS virus: Criminal charges are justified only when infection is intentional, activists contend.
The same day, an editorial in the Globe and Mail completely undermined the rather balanced article by stating, quite bluntly
Disclosing one’s status is, of course, a difficult and emotional journey, fraught with potentially negative consequences. HIV-positive people can be marginalized, and discriminated against in terms of housing, employment and social relationships. However, the collective rights of this minority group cannot take precedence over their individual responsibility not to infect others.
But in Canada the law is clear: Exposure without disclosure is a crime. And that is a good thing.
Judging by the comments left by readers of both articles, although there is some sympathy for the person with HIV, there’s a long way to go before Canadian hearts and minds are won over by the anti-criminalisation advocacy movement.
Lucy Stackpool-Moore (IPPF) and Mandeep Dhaliwal (UNDP)co-chaired a satellite session on the Wednesday that included presentations by Anand Grover, UN Special Rapporteur on Right to Health, and my colleague Robert James of Birkbeck College, University of London.
This debate included discussion of criminalisation from the point of view of increased stigma. Lucy Stackpool-Moore again contributed. The session was not only recorded by the rapporteur, Skhumbuzo Maphumulo, but also reported on by PLUS News.
I’ve already included a blog posting on my presentation, which you can see here. The other presentations included Criminalization of HIV transmission and exposure and obligatory testing in 8 Latin American countries, presented by Tamil Rainanne Kendall. (Audio and slides here); Tanzania case study on how AIDS law criminalizes stigma and discrimination but also stigmatizes by criminalizing deliberate HIV infection, presented by Millicent Obaso (Audio and slides here); and If there is no risk and no harm there should be no crime. Legal, evidential and procedural approaches to reducing unwarranted prosecutions of people with HIV for exposure and transmission, presented by Robert James (and co-authored by yours truly). (Audio and slides here).
The session was also reported on by aidsmap.com.
This session included three oral abstracts on criminalisation of HIV exposure and transmission.
A quantitative study of the impact of a US state criminal HIV disclosure law on state residents living with HIV, presented by Carol Galletly. (Audio and slides here).
Roger Pebody of aidsmap.com provides an excellent summary of her findings here
Under [Michigan] state legislation, people with HIV are legally obliged to disclose their HIV status before any kind of sexual contact. Disclosure is meant to occur before sexual intercourse “or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body”. This would include even fingering or the use of a sex toy.
Carol Galletly reported on a study with 384 people with HIV who live in Michigan (but recruitment methods and demographics were not fully described). Three quarters of respondents were aware of the law.
She wanted to see if the existence of the law had any impact on her respondents’ behaviour. Comparing those who were aware of the law with those who were not, people who knew about the law were no more likely to disclose their HIV status to sexual partners. Moreover they were not less likely to have risky sex.
On the other hand, approximately half of participants believed that the law made it more likely that people with HIV would disclose to sex partners. Having this belief was associated with being a person who did disclose HIV status to partners.
In fact a majority of participants supported the law. Individuals who Gallety characterised as possibly being marginalised were more likely to support the law: women, non-whites, people with less education and people with a lower income.
The two other presentations were: HIV non-disclosure and the criminal law: effects of Canada’s ‘significant risk’ test on people living with HIV/AIDS and health and social service providers, presented by Eric Mykhalovskiy (Audio and slides here) and Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso presented by Patrice Sanon (Audio and slides here).
Other media reports
Other reports mentioning the criminalisation of HIV exposure and transmission published during the conference include:
A piece in the Montreal Gazette, headlined, Advocates raise concerns over prosecuting HIV-positive people
The troubling increase in the number of new HIV cases in Canada may be attributed to the country’s reputation of being a world leader in prosecuting HIV-positive people who fail to disclose their status, according to one group of AIDS advocates. “We’re looking at rising numbers of infection, especially among certain risk groups,” said Ron Rosenes, vice chair of Canadian Treatment Action Council. “And now we’re looking at the criminalization issue as one of the reasons people have been afraid to learn their status.”
A startling and important new report from Sigma Research, entitled Sexually charged: the views of gay and bisexual men on criminal prosecutions for sexual HIV transmission has found that the majority of more than 8000 gay men surveyed in 2006 during the annual Gay Men’s Sex Survey support prosecutions for ‘reckless’ HIV transmission.
An excellent summary of the report’s findings, Ignorance and stigma provide foundation for gay men’s support of criminalisation of HIV transmission by Michael Carter, can be read at aidsmap.com.
The report’s lead author, Catherine Dodds, reported part of these findings at the 2008 CHAPS conference, and I had the honour of joining her on stage to discuss how the gay community might be able to respond to them. A report of our presentations was published in the July 2008 edition of THT’s Issue magazine.
Update: 17th March. In order to respond to a comment I’m uploading a table from the report showing who exactly supports prosecutions by HIV testing history.
As you can see, although ‘only’ 49.4% of HIV-positive gay men do not agree with prosecutions, a further 31% are not sure, leaving a significant minority (19.6%) in favour of prosecutions. This compares with 56.3% of HIV-negative gay men and 63.5% of untested gay men who support criminal prosecutions.
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.