Scotland: New guidance on prosecutions clarifies law, recognises treatment's impact on infectiousness

On May 1st, the Crown Office and Procurator Fiscal Service (COPFS) published their Guidance for Scotland on 'Intentional or Reckless Sexual Transmission, or Exposure to, Infection'.

According to COPFS, the policy aims to "provide guidance to prosecutors but also provide clarity and consistency about this area of the law."

As well as being helpful in Scotland, the guidance should also be a useful educational and advocacy tool for those many other jurisdictions around the world that prosecute alleged HIV exposure as well as transmission.

Scotland is only the second jurisdiction in the world that uses general criminal law for (mostly) HIV-related prosecutions to produce such guidance. They were a direct result of the Crown Prosecution Service (CPS) for England and Wales' policy and guidance, first published in March 2008 and updated in July 2011.  In fact, the COPFS guidance specifically states that

where possible, COPFS has sought to reconcile our policy and practice with the policy in England and Wales.

The CPS policy and guidance came about through a process initiated by key individuals from civil society although they are 'owned' and produced by the CPS. Like the CPS guidance, the COPFS guidance was advocated for by some of the same key individuals who were also consulted during the process. Unlike the CPS guidance, however, there was no public consultation.

THT, which advocated for, and were consulted on the guidance, along with NAT and HIV Scotland, welcomed the guidance with cautious pragmatism.

Catherine Murphy, Head of Public Affairs for the Terrence Higgins Trust, said: “Crown Office has a duty to prosecute criminal behaviour, but it also has a responsibility to ensure that the law is fair and fit for purpose. We hope this policy will provide greater clarity on a complex and highly sensitive issue. For good public health reasons people with HIV must be able to seek advice on sexual health issues without fear of being reported to the police. Nor should they be subjected to unjustified investigations because the law is vulnerable to misinterpretation by police and the courts.

Being consulted on, but not 'owning' the guidance, gave NAT, especially, the freedom to be quoted in the official COPFS press release as being supportive of the guidance but to highlight their concerns in their own press release, which also led to a news story in The Herald with the headline "Fears raised over 'punitive approach' to HIV exposure". In their own press release, NAT's Executive Director, Deborah Jack states

The Guidance allays many of our most significant worries - but we do still hope that a way can be found to end prosecutions for exposure to risk of HIV infection. Such prosecutions unjustly target people with an HIV diagnosis with all the responsibility for safer sex, despite the fact most transmissions are from the undiagnosed. They also encourage fear and secrecy rather than honesty and openness as we talk about sex - and so harm public health.'

Like the CPS guidance, the COPFS guidance is not HIV-specific despite the fact that all four prosecutions of sexual transmitted infections in Scotland so far have been for HIV (although Giovanni Mola was convicted of both HIV and Hepatitis C transmission). This was welcomed by the US Center for HIV and Policy in their note on the guidance, which states

In a particularly positive development, the guidelines do not single out HIV for special treatment, unlike the dozens of HIV-specific statutes that exist and are enforced in the United States.

Although the guidance has been broadly welcomed by civil society organisations working on HIV in Scotland (and elsewhere) they are a pragmatic response to an unwelcome situation. Guidance cannot change laws, but it can clarify uncertain aspects mitigating the harm of the overly-broad application of the criminal law.  (However one area not covered in this guidance are prosecutions and enhanced sentencing for spitting, biting and/or scatching whilst HIV-positive.  Scotland has had several of these recently, including this case reported today).

There is no legislation that specifically criminalises sexual HIV (or other STI) transmission in Scotland. Although it is possible to prosecute alleged intentional transmission as assault, all cases so far have been for 'reckless' exposure or transmission under the Scottish common law offence of ‘culpable and reckless conduct’.

Until the guidance was released yesterday it was unclear whether disclosure in the absence of condoms could be seen as a legitimate defence to accusations of 'culpable and reckless conduct’ (for alleged sexual exposure or transmission) because Scots law does not recognise consent as a defence to an assault charge.  The guidance has now clarified that prosecutions "will be unlikely" if disclosure of known HIV-positive status has taken place.

Importantly, the guidance has also clarified that alleged sexual HIV exposure charges will not be filed if the accused is on treatment with an undetectable viral load and was counselled that this meant there was a low risk of transmission. Specifically, the guidance states that

Prosecution will be unlikely where the following circumstances apply:

• The accused did not know that he/she was HIV positive
• The accused did not understand how HIV is transmitted
• The accused disclosed his or her HIV positive status to the victim
• The accused took reasonable steps to reduce the risk of transmission, for example, by using recommended precautions or avoiding higher risk acts
• The accused was receiving treatment and had been given medical advice that there was a low risk of transmission or that there was only a negligible risk of transmission in some situations or for certain sexual acts

Prosecution will be likely where the following circumstances apply:

• The accused deliberately misled or concealed information from the victim
• The accused did not attempt to reduce the risk of transmission, for example by failing to take prescribed medication or by failing to follow particular medical advice
• The victim was particularly vulnerable in some way
• There is evidence that the accused had intentionally embarked on a course of flagrant conduct

Download 'Sexual Transmission or Exposure to Infection - Prosecution Policy' from the COPFS website.

Canada: Urgent - support the call for prosecutorial guidelines in Ontario

Canada is facing its most critical point in the history of criminalisation of HIV non-disclosure since the Supreme Court's 1998 Cuerrier decision which found that not disclosing a known HIV-positive status prior to sex that poses a "significant risk" of HIV transmission negates the other person's consent, rendering it, in effect, a sexual assault.

In February 2012, the Supreme Court will hear two cases - Mabior and 'DC' - that will re-examine whether Cuerrier remains valid in the light of inconsistent lower court decisions regarding what constitutes a "significant risk" of HIV transmission in the context of sexual transmission, especially when the person with HIV wears a condom and/or has an undetectable viral load due to effective antiretroviral therapy.

The main thrust of the arguments from both sides is that the "significant risk" test is unfair and should be reassessed.  However, Manitoba's Attorney General (who is appealing the Manitoba Court of Appeal's decision to partially acquit Mr Mabior due to his using a condom or due to his undetectable viral load when not using a condom) is arguing in its appellants factum that the only fair legal test is whether or not a person with HIV disclosed before any kind of sexual contact, because figuring out whether the risk at the time was significant enough is too complicated. It also argues that such non-disclosure should be charged as aggravated sexual assault, which carries a maximum 14 year sentence for each episode of unprotected sex without disclosure.

Lindsay Sinese, in excellent recent blog post from The Court, examining both Mabior and DC as they head to the Supreme Court, highlights what is already problematic about attempting to prove non-disclosure in cases that are often based on he said/(s)he said testimony.

In the jurisprudence surrounding HIV criminalization, th[e DC] case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.

Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

The greatest disappointment, however, is that Ontario's Attorney General has joined with the AG's of Manitoba and Quebec (where DC was tried) by obtaining intervener status.

In an application this week to the Supreme Court of Canada, the Office of the Ontario Attorney General asks to be granted intervener status in an upcoming high-profile case revolving around those living with the human immunodeficiency virus, which can lead to AIDS. It argues that the current legal standard the courts must meet has led to different interpretations across the country, resulting in "uncertainty and unfairness" in the Canadian legal system. To remedy this, the government argues that criminal liability should be based only on whether or not someone disclosed his or her HIV-status before engaging in sexual activity and not just on the safety risks they pose.

This is a major slap in the face to the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) campaign urging Ontario’s Attorney General to develop prosecutorial guidelines for Crown prosecutors handling allegations of HIV non-disclosure.  The working group produced an excellent report in June 2011 which calls for restraint in HIV non-disclosure prosecutions and provides detailed legal and practice guidance covering general principles; bail; scientific/medical evidence and experts; charge screening; resolution discussions; sentencing; and complainant considerations. The report, available here, is a must-read for all advocates working in their own countries to obtain prosecutorial guidelines.

In a recent email, CLHE co-chairs Ryan Peck and Anne Marie DiCenso outline the problems they perceive with the promises made by the Ministry of the Ontario Attorney General's and its current position as intervener.

In December 2010, Chris Bentley, the former Attorney General, promised to develop guidelines. Since then, the Ministry of the Attorney General has not informed CLHE when it will be honouring its commitment to develop prosecutorial guidelines, and has not responded to CLHE’s guideline recommendations. CLHE’s recommendations are at http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf.

It is particularly troubling that the Attorney General, after committing to develop guidelines, has filed materials at the Supreme Court of Canada calling upon the Court to rule that people living with HIV must disclose their HIV status before any sexual activity whatsoever, and that not disclosing should be prosecuted as an aggravated sexual assault, which is one of the most serious offences in the Criminal Code.

When asked about this position, former Attorney General, Chris Bentley, indicated that although the intervention materials advocate for the elimination of the current significant risk test, the Attorney General of Ontario has no intention of taking such a position at the Supreme Court of Canada.

It is vital that the Attorney General fulfill the promises made.

But, as of today, we have not received any guarantee from the new Attorney General, John Gerretsen, that the Ministry of Attorney General will amend its intervention materials and take the position that people living with HIV should not be prosecuted when there is no significant risk of HIV transmission.

The Ministry of the Attorney General has until December 20 to submit its final materials to the Supreme Court.  While preparing the materials, the new Attorney General, John Gerretsen, needs to know that the community is mobilized and is watching him.

The most effective way to do this is for everyone who reads this post to endorse the call for guidelines. While the Ministry may care more about Ontarians signing the call, I have had it confirmed from my contacts at CLHE that signatures from other jurisdictions would be very helpful.

When you sign the call the following email (which you can personalise if you want) will be sent to the new Attorney General, John Gerretsen, urging him to develop guidelines by December 31, 2011.

Dear Minister Gerretsen,
I am writing to congratulate you on your new post as Attorney General, and to urge you to take action on an important issue.

As you know, your predecessor, the Honourable Chris Bentley, committed in December 2010 to draft guidelines for criminal cases involving allegation of non-disclosure of sexually transmitted infections, including HIV.

I urge you to draft these much-needed guidelines by December 31, 2011. I also urge you to take into account the broad-based community input provided to the Ministry of Attorney General by the Ontario Working Group on Criminal Law and HIV Exposure (the Working Group). In spring 2011, the Working Group consulted over 200 people -- people living with HIV/AIDS; communities affected by HIV; legal, public health, criminal justice and scientific experts; health care providers; and advocates for women's rights in the context of sexual violence and the criminal justice system. In June 2011, the Working Group provided the Ministry with their Report and Recommendations based on these consultations.

I trust that you will draft guidelines by December 31, 2011, and that you will provide the Working Group and its constituents with an opportunity to review and provide input on this draft.

Guidelines are urgently needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner.  
Please take action.