Criminal Justice System's Response to Non-Disclosure of HIV

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Part D: Stakeholder Perspectives and Recommendations

This Part provides an overview of criminal law and public health policy considerations, as well as recommendations concerning the criminalization of HIV non-disclosure, as expressed by stakeholders, including legal academics, social scientists, organizations that represent persons living with HIV and international organizations. The concerns identified by stakeholders with respect to Canada’s criminal law approach to HIV non-disclosure and its impact on public health efforts include:

• Treating all HIV non-disclosure cases involving a “realistic possibility of transmission”^{Footnote 75} as aggravated sexual assault has led to the over-criminalization of persons living with HIV. Courts have found that the legal test is met even in cases involving the “slightest possibility of endangerment,” where HIV is not transmitted, resulting in persons living with HIV being convicted of, or charged with, Canada’s most serious sexual offence for failing to disclose their HIV status;^{Footnote 76}
• The relevant SCC jurisprudence failed to explore the possibility of treating exposure cases less severely.^{Footnote 77} Canada’s approach to HIV non-disclosure cases is exceptionally punitive,^{Footnote 78} particularly toward persons who have no intent to, and do not, transmit HIV to their sexual partner;^{Footnote 79}
• The existing criminal law fails to reflect medical and scientific advances in HIV treatment, which have significantly reduced risk of HIV transmission, also resulting in over-criminalization;^{Footnote 80}
• HIV is treated in an exceptional way by the criminal justice system compared to other transmissible diseases (e.g., hepatitis B, C and human papillomavirus).^{Footnote 81} Prosecutions for non-disclosure of HIV appear disproportionate and discriminatory given their relatively high number in comparison to prosecutions for non-disclosure of other transmissible diseases.^{Footnote 82}
• Using the sexual assault framework in cases of HIV non-disclosure is inappropriate, since cases involving consensual sexual activity and HIV non-disclosure are fundamentally different from forced sexual assaults;^{Footnote 83}
• Canada’s criminal law approach to HIV non-disclosure increases stigmatization of, and discrimination against, marginalized persons, including Indigenous persons and racialized populations, such as Black Caribbean and African persons, who are disproportionately represented among persons living with HIV;^{Footnote 84}
• Participants in the criminal justice system lack knowledge about HIV generally, and the most recent medical science on HIV transmission in particular, which increases stigmatization;^{Footnote 85}
• Criminalization of HIV non-disclosure negatively impacts public health efforts since fear of prosecution may discourage persons living with HIV from seeking testing, counselling and education, and obtaining treatment, which could exacerbate HIV transmission;^{Footnote 86}
• Fear of prosecution may also discourage persons living with HIV from disclosing their status immediately after potential exposure (e.g., after condom breakage), thereby preventing the HIV negative sexual partner from obtaining post-exposure prophylaxis treatment if desired;^{Footnote 87} and,
• Media releases of HIV-related prosecutions negatively impact public health initiatives, such as HIV testing and de-stigmatization messaging.^{Footnote 88}

Stakeholders have made a number of recommendations that address some of the concerns noted above. These include:

Public health responses should be exhausted before pursuing a criminal law response

The criminal law should only be used in limited circumstances for the most blameworthy conduct, where public health measures have been exhausted and have failed to change the behaviour of persons who engage in a pattern of non-disclosure that exposes others to risk.^{Footnote 89} Coercive public health interventions could form part of the response in cases where a person living with HIV has access to the tools needed to prevent HIV transmission, but nonetheless engages in behaviour that poses a significant risk.^{Footnote 90}

Criminal justice responses, where appropriate, should involve public health authorities

A coordinated public health and criminal justice response could result in provision of services to those engaged in risky behaviours and, as a result, fewer cases being prosecuted; however, some public health officials view such collaboration with caution because they may not support a punitive response.^{Footnote 91}

Criminal liability should be limited to intentional transmission of HIV

The use of the criminal law should be restricted to cases involving deliberate transmission of HIV^{Footnote 92} or cases where a person acts purposefully, with conscious or “malicious” intent to transmit HIV.^{Footnote 93}

The criminal law should be applied to reckless conduct and exposure cases with caution

Jurisdictions that criminalize reckless conduct should narrowly define recklessness as “conscious disregard” of a “significant risk” of HIV transmission.^{Footnote 94} Furthermore, the use of the criminal law should be exceptional in exposure cases, require proof of an appropriate culpable mental state (i.e., an intent to transmit), and be limited to circumstances where there was a “significant risk” of HIV transmission, as defined by the most recent medical science.^{Footnote 95}

The scope of the criminal law should be informed by the best available scientific and medical evidence

The most recent medical and scientific evidence on HIV transmission risk must be the basis for determining if and when conduct should attract criminal liability.^{Footnote 96} Criminal liability should not result where condoms were used effectively, other forms of safer sex were practiced (e.g., oral sex), or the person living with HIV was on effective HIV treatment or had a low viral load.^{Footnote 97}

Criminal offences of general application should be used and their elements should be clearly defined

HIV-specific offences violate international human rights standards and should be avoided;^{Footnote 98} only offences of general application should apply to those exceptional cases involving intentional HIV transmission and elements of foreseeability, intent, causality and consent should be clearly defined in law.^{Footnote 99}

Non-sexual offences should be used in HIV non-disclosure cases

Similar to the approach in the UK,^{Footnote 100} police should lay, and prosecutors should pursue, charges for offences that do not include a sexual element,^{Footnote 101} such as nuisance, criminal negligence, and assault.^{Footnote 102}

These offences would provide prosecutors with greater flexibility to ensure both protection of the public and fairness to the accused and the complainant, through a wider range of resolution and sentencing options.^{Footnote 103} Such an approach would also not result in registration in the National Sex Offender Registry.^{Footnote 104}

Prosecutorial guidelines should be developed

Clear prosecutorial guidelines should be developed in every province and territory in Canada to address the risk of over-criminalization,^{Footnote 105} curb arbitrary laying of charges, and achieve improved interaction between public health, criminal law and community-based organizations.^{Footnote 106}As in the UK,^{Footnote 107} guidelines should be developed in consultation with persons living with HIV, experts, service providers, and their development should be informed by the most recent medical science on HIV transmission.^{Footnote 108}

Options for legislative reforms should be explored

Defences related to condom use, low viral loads, and lower risk sexual activity (e.g., non-penetrative and oral sex) should be available to avoid application of the criminal law in cases where persons living with HIV have taken appropriate steps to protect others from infection.^{Footnote 109}

Education of criminal justice system actors is required

Training resources for judges, police, prosecutors, defence counsel and prison staff about HIV transmission and the realities of living with HIV, including the relevant science, the social context, and the impact of prosecution on public health initiatives, should be developed.^{Footnote 110}

Further education on HIV and research on the public health implications of criminalization is required

Additional tools to educate the public and destigmatize HIV/AIDS should be developed in collaboration with community experts, people living with and affected by HIV, the criminal justice system, public health departments, researchers and policymakers.^{Footnote 111} Further areas of research should include: exploring restorative justice approaches and innovative public health case management approaches; studying the underlying social, cultural and behavioral factors contributing to HIV criminalization; and, exploring how criminal justice practitioners understand HIV.^{Footnote 112}

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