The past year has seen many watershed moments for people living with HIV — including the latest news out of Amsterdam from the 22nd International AIDS Conference (AIDS 2018).
Last month, 20 leading HIV scientists from around the world released a global Expert consensus statement on the science of HIV transmission in the context of the criminal law. Drawing on a comprehensive review of the available scientific evidence, the statementestimates the per-act possibility of HIV transmission under different conditions. The findings suggest that, in many jurisdictions, a failure to appreciate scientific evidence is contributing to the overly broad use of criminal charges, including the criminalization of behaviours that carry a zero or low risk of transmission, whether through poorly drafted HIV-specific criminal laws or the ill-advised pursuit of charges under general criminal offences.
The latter has been the case in Canada, where people living with HIV have been charged with some of the most serious offences in the Criminal Code for allegedly not disclosing their HIV status to their sexual partners. The charge of aggravated sexual assault is seen most often, on the theory that the absence of disclosure renders a partner’s consent to sex invalid.
In 2012, in R. v. Mabior  2 S.C.R. 584 the Supreme Court of Canada “clarified” that people living with HIV have a legal duty to disclose before having sex that poses a “realistic possibility of HIV transmission.” But while the court explicitly cautioned against overextending the criminal law to capture small risks, it then did precisely this, leaving open the prospect that persons living with HIV could be prosecuted and convicted in cases where there is little or no chance of the virus being transmitted.
Any argument for criminalizing HIV non-disclosure boils down to the two main functions of the criminal law: deterrence and retribution. But the available evidence doesn’t suggest the current, overly broad use of the criminal law achieves either of these aims — and the news out of Amsterdam further underscores the need for reining in prosecutions.
In terms of deterrence, studies have shown that the existence of HIV criminalization in a given jurisdiction is not associated with higher levels of HIV disclosure or safer sex overall, or a reduced incidence of HIV.
However, the threat of criminal prosecution does have some unfortunate deterrent effect on people getting tested, because being diagnosed means you’re then at risk of being accused of non-disclosure and conviction, even if you’ve not done anything posing an objectively significant risk of transmission. The more unscientific and overly broad the law, the greater the risk.
HIV criminalization laws also have further harmful implications, contributing to misinformation and stigma related to the virus, which in turn can make it harder for people living with HIV to disclose and/or to negotiate condom use.
Furthermore, using the criminal law to seek retribution, on the other hand, is inappropriate in cases where there was low or no risk of HIV transmission, and in the absence of actual transmission and an intent to transmit. Unfortunately, despite the current law’s supposed requirement of a “realistic possibility” of transmission, charges have often been laid in such cases.
The retribution rationale for criminalization is also problematic when we consider that, when the law is used to address HIV non-disclosure in Canada, it tends to disproportionately affect Indigenous, gay and black people.
The federal Department of Justice acknowledged that fact in its report, released on Dec. 1, 2017, (World AIDS Day), titled Criminal Justice System’s Response to Non-Disclosure of HIV. That report recommends limits on the law, which now need to be reflected in clear prosecutorial directives issued by federal and provincial attorneys general across the country.
On the same day the federal government released its report, the Ontario attorney general updated the province’s Crown Prosecution Manual to state that provincial Crown prosecutors will no longer prosecute cases of alleged HIV non-disclosure where the accused person has had a suppressed viral load — meaning under 200 copies of the virus per millilitre of blood — for at least six months. It fell short, however, of what is needed. For example, people who use condoms, or for simply engaging in oral sex, even though the global Expert Consensus Statement confirms such activities pose zero or negligible risk of transmission.
In March 2018, the B.C. Prosecution Service released an updated policy that is even more wanting than Ontario’s: it leaves the door wide open to a wide array of unjust prosecutions at odds with the available science, with human rights and with good public health practice. The policy, in essence, doesn’t provide a single scenario in which it actually rules out prosecuting someone living with HIV.
Advocates in Canada have laid out what needs to be done in a Community Consensus Statement, which calls on the federal government to reform the Criminal Code, and on provincial attorneys general to adopt evidence-based guidelines for Crown prosecutors, to limit the unjust use of criminal law. (View the statement here.)
The Expert Consensus Statement now adds to the mounting pile of evidence available to assist courts in making sure the law is consistent with science and with human rights. With much more progress on this issue required, the application of the latest evidence out of Amsterdam in criminal cases — by prosecutors and by courts — has the potential to limit unjust prosecutions for HIV non-disclosure that arise where courts have an inadequate grasp of the scientific research.
Richard Elliott is a lawyer and the executive director of the Canadian HIV/AIDS Legal Network.