The Canadian HIV/AIDS Legal Network has published three important new resources in the aftermath of last month's devastating Supreme Court decision which found that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission.
Not disclosing in such circumstances means a person with diagnosed HIV could be convicted of aggravated sexual assault.
As well as a detailed analysis in a briefing paper (aussi disponible en français) and a shorter info sheet, the Legal Network has produced a very helpful – if depressing – Q&A for people living with HIV (aussi disponible en français) as well those who support and advise them.
It is clear from these analyses that the Supreme Court's decisions are a major step backwards for human rights and for public health.
I am reproducing below the commentary from their briefing paper as well as the Q&A, with permission. For the entire text, with footnotes and references, please visit the Canadian HIV/AIDS Legal Network website.
Canadian HIV/AIDS Legal Network
HIV non-disclosure and the criminal law: An analysis of two recent decisions of the Supreme Court of Canada (R. v. Mabior, 2012 SCC 47, R. v. D.C., 2012 SCC 48)
On October 5, 2012, the Supreme Court of Canada released its decisions in the cases of Mabior and D.C. The Court decided that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault. In defining when there is a “realistic possibility” of transmission, the Court has set the bar very low. At this time, the only sex that the Court has recognized as not posing a realistic possibility of HIV transmission is vaginal sex that takes place when (1) a condom is used, AND (2) the person living with HIV has a low or an undetectable viral load. If both of these conditions are met, then there is no obligation under the criminal law to disclose one’s HIV status. However, the Court has not clarified how the requirement to disclose in the case of a “realistic possibility” of transmission applies to any sexual activity other than vaginal sex.
Commentary
For people living with HIV and for those working in the field of HIV prevention and care, these decisions are a major step backward from the Supreme Court of Canada’s previous decision in Cuerrier. While the Court said it was maintaining the “significant risk” test it previously established in 1998, it has deprived the word “significant” of much meaning. A “significant risk” of transmission must now be understood as a “realistic possibility” of transmission, and the Court says this includes anything higher than a “negligible threshold” or anything more than a “speculative possibility.”
By deciding that there is a duty to disclose before vaginal sex unless both a condom is used and a person’s viral load is low (i.e., where the risk is almost zero), the Court effectively decided that almost any risk, no matter how small, could trigger a duty to disclose, even as the Court also declared that it did not want to criminalize “any risk, however small.” This was but one of numerous contradictions in the Court’s judgments in these cases. In essence, the Court purported to put some limit on the scope of the criminal law, but that limit was largely illusory.
The Supreme Court recognized that although the law must ensure that consent to sex is meaningful, “not every deception that leads to sexual intercourse should be criminalized.” It also stated that there must be a balance between a sexual partner’s interest in autonomy and equality in consenting to sex, which values are entrenched in the Canadian Charter of Rights and Freedoms, and “the need to confine the criminal law to conduct associated with serious wrongs and serious harms.” The Court further acknowledged that an overly broad use of the criminal law would be unfair and stigmatizing for people living with HIV, and that the experience of other common law jurisdictions “sounds a note of caution against extending the criminal law beyond its appropriate reach in this complex and emerging area of law.”
Yet despite these multiple warnings, the Supreme Court of Canada chose to expand the scope of the criminal law in cases of HIV non-disclosure and to clearly indicate that its new test of disclosure being required in the case of a “realistic possibility” of transmission is “specific to HIV.” Moreover, although the Court was clear that “[t]he potential consequences of a conviction for aggravated sexual assault ... underline the importance of insisting on moral blameworthiness in the interpretation of [the law],” it failed to address the issue of the mens rea (i.e., “guilty mind”) required to obtain a conviction for HIV non-disclosure, as had been suggested by the coalition of AIDS organizations. As a result, based on the Court’s decisions in Mabior and D.C., a person who acts responsibly by taking highly effective precautions to protect their partner, and who has no intent to cause harm, can face charges of aggravated sexual assault.
Finally, the Court did say that the law should be open to “adapting to future advances in treatment.” Such advances could further affect both the risks of HIV transmission and the harm associated with HIV. But very significant advances have already taken place. When treatments are available, HIV is already a chronic and manageable disease. Moreover, the impact of treatment on dramatically reducing what are already very small risks is now well established. It is therefore unfortunate that the Court refused to consider this existing evidence about the impact of low viral load sufficient to preclude criminal charges.
In addition to its contradictory approach to assessing and criminalizing the risk of HIV transmission, the Court’s approach to consent was also deficient. The Court made a passing reference to an earlier, leading case (R. v. Ewanchuk) about when consent to sex is not valid; Ewanchuk concerned rape myths and situations where there was no real consent to sex because it was forced or because a person was afraid to refuse. The Court also repeatedly asserted that its approach in Mabior and D.C. was in line with the Charter values of equality and sexual autonomy.
But nowhere did the Court meaningfully analyze how the law protects personal autonomy and advances equality (i.e., specifically for women) by overriding the consent of an adult to engage in sex solely because of the absence of certain information they might prefer to know. The Court ignored the cases decided in Canada since Cuerrier on HIV non-disclosure and much of the analysis emerging from various other, similar jurisdictions where the trend is to limit the criminal law. Whether or not the Supreme Court wants to admit it, people do have sex without full and complete information about their sexual partners all the time — including in circumstances which can give rise to some risk of serious harm. Yet the law does not step in to all such circumstances to override consent and criminally prosecute the lack of disclosure of information.
Consenting adults are capable of deciding whether to have protected or unprotected sex without being aware of whether a particular partner does or does not have HIV or another sexually transmitted infection (STI), and do so often. Contrary to the Court’s basic assumption, sexually active adults are not deprived of their autonomy, including their ability to decide whether to practise safer sex, simply because they lack information about a sexual partner’s HIV or other STI status.
The Court also failed to consider the challenges associated with disclosure of a heavily stigmatized and misunderstood condition: repercussions can include loss of privacy, discrimination and rejection, and even violence. Lack of disclosure may not be about asserting force over another person in order to gain sexual gratification — which is the assumption behind equating it with aggravated sexual assault — so much as about protecting oneself from violence or other harm. By broadly asserting that this is about protecting the dignity and autonomy of the sexual partner without any examination of the range of factors at play when people have sex, the Court revealed a shallow understanding of the values that it purports to protect when criminalizing HIV non-disclosure, even in cases where the risk of transmission is miniscule. Such an approach trivializes sexual assault and diverts the law from protecting women’s physical and sexual autonomy.
In addition, the Supreme Court decisions in Mabior and D.C. did not provide much certainty in the law. There are many questions that remain unanswered and that will be tested in courts on the backs of people living with HIV. Do people have a duty to disclose before they engage in oral sex? What about those who have an undetectable viral load at the time they have oral sex? How do these decisions apply to anal sex?
Finally, these decisions further undermine public health and the rights of people living with HIV. They create additional disincentives to seek HIV testing and will discourage some people from talking with their counsellors and physicians about their sexual and disclosure practices, as medical and counselling records can be subpoenaed and used in criminal investigations.
The Court’s decisions will also disproportionally affect the most vulnerable. Access to treatment was once an issue of public health and social justice. Now it is also a criminal issue. People with inadequate access to care, treatment and support may not be able to establish a low viral load. If they do not or cannot disclose their status — including because of fear of violence or other negative consequences — they will be exposed to criminal conviction and imprisonment. Based on the Supreme Court of Canada’s judgments, a condom alone is not sufficient to avoid conviction.
The Court has put another tool for coercion into the hands of abusive partners. This can only exacerbate the vulnerability of HIV-positive people in abusive and/or violent relationships to blackmail and threats of prosecutions, an outcome that will disproportionately affect women living with HIV. In summary, the Court’s decisions in Mabior and D.C. make already bad and unclear law, which has resulted in uneven application and injustice in numerous cases, even worse — for people living with HIV, for HIV prevention and care efforts, and hence for public health.
Q&A: Implications of recent Supreme Court of Canada decisions for people living with HIV
When do you have a legal duty to disclose your HIV-positive status to a sexual partner?
The Supreme Court of Canada says that you must disclose your status before having sex that poses “a realistic possibility of transmitting HIV.” But the Court also found that almost any risk is “realistic,” no matter how small. Based on the Court’s decisions, you have a legal duty to disclose:
▪ before having vaginal or anal sex* without a condom (regardless of your viral load); or
▪ before having vaginal or anal sex* with anything higher than a “low” viral load (even if you use a condom).
* See below for more information on the duty to disclose and anal sex.
In summary, either using a condom or having a low viral load is not enough to preclude criminal liability in cases of HIV non-disclosure when it comes to vaginal and anal sex.
When don’t you have a duty to disclose?
The Supreme Court of Canada was clear that you do not have a duty to disclose before having vaginal sex if (1) your viral load is low or undetectable and (2) you use a condom. Both of these are required.
▪ NOTE: Your viral load does not need to be “undetectable.” A “low” viral load is sufficient. What this means remains to be defined in subsequent cases. However, based on the Supreme Court of Canada decisions, it seems that it should at least include any viral load below 1500 copies of the virus per millilitre of blood.
What is still unclear?
There is still a lot of uncertainty in the law. Because the cases before the Supreme Court of Canada only dealt with HIV non-disclosure in the context of vaginal sex, it is not clear how the test of a “realistic possibility of transmission” will be applied to other sexual acts.
▪ What about anal sex?
Anal sex poses higher risks of transmission than vaginal sex, so the duty to disclose is at least as strict as for vaginal sex. In other words, you have a duty to disclose before having unprotected anal sex or when your viral load is higher than “low.” It might be the case that, as with vaginal sex, if you use a condom and your viral load is low, you don’t have a legal duty to disclose. But at this time, we can’t say for certain if satisfying both these requirements (condom use plus a low viral load) will be enough to avoid convictions in the case of anal sex.
▪ What about oral sex?
Oral sex (without a condom) is usually considered very low risk (i.e., an estimated risk ranging from 0 to 0.04%). We don’t know at this point whether courts will find that there is a duty to disclose before oral sex without a condom. We also don’t know whether it makes a legal difference if you are receiving or performing oral sex, or whether the amount of semen or vaginal fluid that the person performing oral sex is exposed to can make a legal difference.
What if you have a low or undetectable viral load AND use a condom but the condom breaks?
This is a very difficult question to answer and there are several factors that you should take into account:
▪ Although this issue was not addressed by the Supreme Court of Canada, you may have a duty to disclose in the case where a condom breaks.
▪ Disclosing your status after a condom breaks could be relevant to your sexual partner in deciding whether to seek “post-exposure prophylaxis” (PEP) with antiretroviral drugs to further reduce any risk of infection.
▪ But disclosure in such circumstances may also expose you to an increased risk of violence and/or threat of prosecutions. HIV continues to generate a lot of fear and misconception. Your partner may have a bad reaction if he or she discovers that you are HIV-positive after a condom breaks.
How can you protect yourself against prosecutions?
There is no guaranteed way to avoid being accused of HIV non-disclosure. People may lie or make mistakes about whether disclosure took place and/or whether a condom was used. But there are things you can do that may reduce the risk of criminal prosecutions or conviction for HIV non-disclosure.
▪ Tell your sexual partners that you are HIV-positive before sex, and try to get proof that you told them about your status (e.g., disclose your status in front of a witness before having sex, such as a counsellor or doctor, who can document that disclosure took place, or sign a joint document).
N.B.: Please be aware that any document that would establish that you had sex prior to disclosure might work against you. This could especially be the case if you had vaginal or anal sex before you first disclosed and, at the time of that sexual act, you did not use a condom or you cannot establish that your viral load was low or undetectable at that time.
▪ Use a condom when you have vaginal or anal sex and see a doctor regularly to create a record of your viral load test results showing lowered viral load.
Other important things to know about the Supreme Court of Canada decisions and the legal duty to disclose:
▪ There is no distinction between silence and a lie. People may face criminal charges for not disclosing their status whether their partners inquired about their HIV status or not.
▪ There is no distinction based on the circumstances of a particular encounter, including the type of relationship. People may face criminal charges whatever the type of relationship they had with their partner (e.g., whether with a casual partner versus a spouse) and whether the sex was for love, fun, money, procreation or drugs.
▪ People living with HIV can be prosecuted even if they had no intent to harm their partner.
▪ People living with HIV can be charged with aggravated sexual assault for not disclosing their status. An aggravated sexual assault is a sexual assault that “endangers the life” of the other person. It carries a maximum penalty of imprisonment of life and mandatory registration as a sexual offender.
The information contained [above] is information about the law, but it is not legal advice. For legal advice, please contact a criminal lawyer.
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