The Criminalization of HIV Non-Disclosure: A Closer Look at the Duty to Disclose

Contributed by: Annelise Harnanan

A Closer Look at the Duty to Disclose

In Canada, failing to disclose a positive HIV status may lead to charges for various offences – most notably aggravated sexual assault and aggravated assault. Two landmark Supreme Court of Canada cases have described the circumstances under which an individual with HIV may be prosecuted for not disclosing their status: R v Cuerrier and R v Mabior. However, the criminalization of non-disclosure of HIV status has been widely criticized by experts in various fields, such as the domains of science and public health.

34946504726_266349e58b_o The HIV Virus || (Source: Flickr // Firstname sjw )

The Law

The Criminal Code does not contain any offences specifically related to HIV or other sexually transmitted infections. However, in the late 1990s, the police started to lay criminal charges related to HIV exposure. In R v Cuerrier, Cuerrier was charged with two counts of aggravated assault under s. 268 of the Criminal Code which states that “Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.” Cuerrier, who was HIV-positive, had unprotected sexual relations with two women without informing them of his status. It is important to note that one cannot consent to an assault; therefore it is important for the court to establish that consent could not have been obtained, because the victims were not informed of critical information that would otherwise have made them refuse the sexual encounter. The courts held that the fact that he did not inform them of this positive status constituted a fraud and vitiated consent under s. 265 (3)(c), satisfying the mens rea element for the offence of aggravated assault. Additionally, the offence’s requirement that the accused’s acts endanger the life of the complainant under s. 268 (1) of the Criminal Code was met because not disclosing his positive status, vitiating consent under s. 265 (3)(c), and having unprotected sex “put the complainant at a significant risk of suffering serious bodily harm”. Therefore, the courts had stated that non-disclosure of an HIV-positive status could constitute assault if there was a significant risk of serious bodily harm to the complainant.

After the ruling in R v Cuerrier, commentators pointed out the challenges in determining when there may or may not be a significant risk of bodily harm. For example, it was uncertain whether condom use would negate the significant risk of bodily harm. Additionally, it was not clear whether or not a person’s viral load would affect this risk. In her article for the McGill Journal of Law and Health, Grant argues that Courts’ interpretation of Cuerrier have resulted in “too broad and too uncertain a test for criminalization of non-disclosure”. Over time, the courts also wrestled with this idea, and many acknowledged the need to clarify the law and its duty to disclose.

In R v Mabior, the judges of the Supreme Court acknowledged this need and set out to specify when the non-disclosure of a positive HIV status during sexual activity could count as a “significant risk of serious bodily harm.” The Court found that this risk exists when there is a “realistic possibility of transmission”. This realistic possibility of transmission is defined in negative terms: it is not met “if the HIV-positive person has a low viral count […] and there is condom protection” (para 4). In other words, to avoid criminal prosecution, a person with HIV who does not disclose that status during sex must have a low or undetectable viral count and they must use a condom. Notably, however, the Supreme Court said that this test is a conclusion flowing from the facts of this case, and that it does not prohibit the common law from adapting to advances in treatment and different circumstances involving other risk factors. Nevertheless, Mabior’s contributions to the legal framework surrounding the duty to disclose have been critiqued. Some of the criticisms are examined below.

The Science

It is often said that the law does not keep pace with science or technology, and some say that the criminalization of non-disclosure is no exception. In July 2018, a team of twenty scientists released an Expert Consensus Statement examining the abundance of prosecutions related to the perceived risk of HIV acquisition. The authors contend that these prosecutions often happen where “HIV transmission did not occur, was not possible or was extremely unlikely” and therefore are not informed by the best available scientific evidence. The authors state that the per act chance of HIV transmission during sexual intercourse ranges from “zero to low”, and that correct use of a condom prevents HIV transmission. “Correct use”, they say, means “the integrity of the condom is not compromised, and the condom is worn throughout the sex act in question”. Contrary to the ruling in Mabior, this suggests that even if a person has a high viral load but uses a condom properly, a realistic possibility of transmission of HIV would not exist. Though this article was published  recently, the evidence used has been written on as far back as 1997, suggesting that this information had been around at the time of the ruling in Mabior in 2012. This supports the contention that the law is not always up to date with science.

The consensus statement then asserts that people living with HIV have an increased life expectancy and that their quality of life has significantly improved thanks to antiretroviral therapies. Researchers maintain that persons with HIV can live healthy, normal lives if they obtain proper treatment. This questions whether or not the criminal law ought to punish only those with a positive HIV-status, and not other treatable sexually transmitted infections, in cases of non-disclosure. It also brings into question whether non-disclosure of issues not related to sexually transmitted infections, such as increased risk of pregnancy, should also vitiate consent. Given the scientific research, it is unclear what differentiates HIV positive status from these other cases to vitiate consent. Without sufficient differentiation, in order to be consistent, the criminal law should arguably not criminalize HIV-exposure in the case of non-disclosure.

A Public Health Perspective

In a report on Criminalizing HIV Non-disclosure, Exposure and Transmission, Mykhalovskiy and others compile and summarize various research projects addressing the topic. They noted that most research found that criminalization negatively impacts public health and community-based efforts to prevent HIV transmission. They found that criminalization increases stigma and discrimination – especially in racialized communities. It is argued that this stigma discourages people from getting tested, which delays treatment. This delay in treatment can be detrimental to a person’s health. The authors also note that criminalization of non-disclosure can negatively impact HIV care by legally altering the relationship between practitioner and patient.  Though this is described as a “subtle impact”, the authors of the study explain that nurses have reported challenges in maintaining good relationships with their patients. They also found that some nurses’ note-taking practices were altered upon criminalization, due to the possibility that client records might be subpoenaed. Though this particular study was based on a small sample, if there is a broad change in practitioner behaviour due to criminalization, it could be harmful to public health efforts combatting HIV if it negatively impacts the rapport between patient and practitioner.

6035342419_75eb3346ba_o Doctor and Patient communication such as this can be negatively affected || (Source: Flickr // CHITREC )

Is the Law “Catching Up”?

In certain cases, courts have not strictly applied the test set out in Mabior that there is no realistic possibility of transmission (and therefore no significant risk of bodily harm) if a condom is used and there is a low viral load. For instance, the Nova Scotia Provincial Court, in R v J.T.C., decided that although the accused did not use a condom during sex, the realistic possibility of transmission test was found not to have been met because he had a low viral count. In this case from 2013, the court relied on expert scientific evidence to conclude that there was a very low risk of HIV transmission and acquit the accused. Therefore, the law acknowledged that, contrary to the ruling set out in Mabior, there may not be a realistic possibility of transmission without condom use, if there is a low viral load.

Recently, the Canadian government set out to reconcile tensions between the scientific and public health arguments described above and the law’s criminalization of non-disclosure. In December 2017, the Department of Justice Canada released a report on the Criminal Justice System’s Response to Non-disclosure of HIV. The report, among other things, acknowledges the accuracy of the science described above. It also concludes that the criminal law should “generally not apply” to persons living with HIV who use condoms or are on treatment because “the realistic possibility of transmission test is likely not met in these circumstances”. In spite of the Supreme Court’s rulings in Cuerrier and Mabior, given the Government’s report mentioned earlier, it is possible that courts will find, as in R v J.T.C., ways in which a realistic possibility of transmission does not exist through means other than condom use and a low viral load. However, it is unclear if the report’s recommendations will be followed nation-wide. It is possible that courts continue to apply the test laid out in Mabior inconsistently. The uncertainty of whether or not one’s actions will be criminalized arguably violates the principle of rule of law that one should be able to know for what he or she may be criminalized. However, there is hope that judges take the time to carefully examine the facts and listen to expert witnesses backed by science in ascertaining whether this risk existed in individual circumstances.

Annelise Harnanan is a Junior Online Editor with the McGill Journal of Law and Health. She is in her first year of the B.C.L./ L.L.B. program at McGill University’s Faculty of Law, and has a keen interest in health policy. She holds a BA with distinction in Political Science from Dalhousie University. 

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