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Criminalization of HIV Non-disclosure: Imagining a Public Health Response


I Introduction
II Overview
III The workshop
III The workshop
IV Findings
V Key Concerns
VI Recommendations for Future Action
VII Conclusions
VIII Resources

--submitted by Nivedita Ravi, Anthea Darychuk, Michelle Olding, Rebecca Penn and Nicole Greenspan

I Introduction

The application of criminal law to address HIV disclosure in sexual activity is a relatively new and highly contentious issue. The criminalization of HIV non-disclosure refers to the use of criminal law to prosecute and sanction people living with HIV/AIDS (PHAs) who are accused of failing to disclose their HIV status prior to engaging in sexual activity. Despite the lack of support for criminalization from UNAIDS and international bodies, Canada has pursued this approach to addressing cases of non-disclosure. Evidence does not suggest that the use of criminalization of non-disclosure supports HIV prevention efforts, and as such, there are concerns that this approach risks undermining public health efforts and infringing upon human rights (Canadian HIV/AIDS Legal Network, 2010).

The number of HIV non-disclosure prosecutions in Canada continues to increase yet formal mechanisms for communication or collaboration between public health and the criminal justice system do not exist. This gap has significant implications for PHAs, and for public health policy and practice. Further, while existing public health tools may not shield the public from all risks of HIV transmission, the use of criminal law is something of a blunt tool, one that is not yet proven to reduce HIV transmission and that may potentially cause greater harm than good (Canadian HIV/AIDS Legal Network, 2010).

In response to this pressing issue, a group of Fellows from the CIHR Strategic Training Program in Public Health Policy organized a pre-conference workshop at the Ontario Public Health Convention (TOPHC) in April 2013. The purpose of the workshop was to provide a forum for public health practitioners to discuss how the recent Supreme Court of Canada (SCC) decisions with regards to the criminalization of non-disclosure impact their day-to-day work. In addition, the workshop aspired to catalyze dialogue by engaging practitioners in envisioning a public health response to the criminalization of HIV non-disclosure. In this report, we provide an overview of the issue, a description of the event, some key findings, conclusions and recommendations.

II Overview

In September 1998, the SCC released the landmark R. v. Cuerrier [1998] decision, where a PHA was criminally prosecuted for engaging in sexual activity without disclosing their HIV status, based on the idea that fraud vitiates consent. This ruling established that PHAs are required to disclose their HIV status to a sex partner in cases where there is a ‘significant risk’ of HIV transmission. As a result of this decision, failure to disclose could result in criminal charges and conviction for the crime of aggravated sexual assault. The judgement in this case, however, failed to articulate or clearly define what constitutes ‘significant risk’, thus resulting in the need to set precedents on a case-by-case basis. In response to this 1998 ruling, the Chief Public Health Officer instructed all public health staff conducting HIV counselling to emphasize “the need for [HIV-positive] individuals to disclose and not to lie about their HIV status to all sexual partners” (OACHA, 2003). It is important to note the pejorative phrasing and implications of this directive (i.e., equating non-disclosure with lying), and also that the directive interprets the Cuerrier decision in a more severe fashion than may have been intended.

Since the 1998 Cuerrier decision, there has been an increase in HIV transmission prosecutions, greater publicity of prosecutions in the media, and an escalation in the number of charges, as well as the severity of charge and sentence. In October 2012, the SCC revisited the issue of HIV non-disclosure in two cases: R. v. Mabior and R. v. D.C. The SCC’s rulings maintained that PHAs are required to disclose their HIV status to their sex partners, but replaced the term ‘significant risk’ with ‘realistic probability’ of transmission. ‘Realistic probability’ was again not clearly defined, but the SCC stated that a ‘realistic probability’ of HIV transmission did not exist if a PHA had a low viral load and used condoms with their sex partner during vaginal intercourse. The implication of this decision is that a PHA does not have an obligation to disclose their HIV status where they maintain a low viral load and use a condom with all sex partners.  This is in contrast to some of the rulings that were made in the lower courts after the Cuerrier ruling, where just the use of a condom was considered sufficient precaution.

‘Realistic probability’ of transmission introduces new terminology and a set of standards for judging risk of transmission that are different from the guidelines upon which public health education about HIV risk is based (Canadian AIDS Society, 2004). This creates confusion for public health practitioners who are tasked with educating PHAs and others about the risks of HIV transmission.  Given that SCC decisions are precedent setting, an entirely new set of case law will need to be derived in order to determine with clarity and predictability how the ruling may be applied. This creates difficulty for practitioners to know how best to advise PHAs and others about HIV health risks and the potential for legal action.

III The workshop

In April 2013, we hosted a workshop at the Ontario Public Health Convention (TOPHC) in Toronto.  The purpose of the workshop was to provide a forum for public health practitioners (including practitioners from community agencies) to discuss how the recent SCC decisions impact their day-to-day work and to engage practitioners in envisioning a public health response to the criminalization of HIV non-disclosure. 39 people attended the half-day workshop; they included: public health nurses and case managers; Associate Medical Officers of Health; managers, staff, and peer workers from community agencies; and graduate students in public health and related disciplines. The workshop was divided into two parts: a panel presentation from three experts and small group discussions.

Part I: Expert Panel

The goal of the panel presentations was to provide an overview of the issue of criminalization of HIV non-disclosure in Canada. The three speakers addressed different aspects of the issue, reflecting their particular area of expertise and activity.  Ryan Peck is the Executive Director of HIV & AIDS Legal Clinic of Ontario (HALCO) and the co-chair of the Ontario Working Group on Criminal Law and HIV Exposure (CLHE). Ryan provided a review of the SCC ruling and emphasized the resulting paradoxes and uncertainties for PHAs and public health practitioners. He spoke to the differential impacts that criminalization has on people according to gender, race, and class. Most prosecutions involve men of African and Caribbean heritage, with aggravated sexual assault being the most common charge. Ryan addressed the need for prosecutorial guidelines to aid in transparency and consistency about what activities can result in a conviction and how to make that message public.

Chris Saunders is currently completing his doctoral dissertation at York University on the impacts of criminalization on public health practice. His research suggests that criminalization effects how public health nurses counsel and manage client care. Chris highlighted concerns from nurses about the potential erosion of patient confidentiality and trust due to fear and uncertainty about client information being used in future HIV non-disclosure prosecutions. In his presentation, Chris made clear that some nurses are now charting with a clear awareness of criminalization, whereas before they did not see their work as potentially incriminating to the clients they serve.

The third panellist, Dr. Eric Mykhalovskiy, is an Associate Professor at York University, where he teaches sociology and health related-issues. Dr. Mykhalovskiy has been active in the HIV research arena for several years, investigating in particular the role of evidence and values in research methodology. He spoke about the need to recognize that a limitation of research is its inability to respond to or give definite answers to normative debates. He proposed that research can play a role in changing the way that an issue is framed, which, in turn, may influence potential responses to the issue. Dr. Mykhalovskiy’s presentation explored how the different types of research in this field affect the claims being made about HIV and criminalization and how the issue is being framed by different groups.

Part II: Discussions

Following the expert panel, four small groups were convened to encourage facilitated discussion and deliberation. The groups were constituted based upon expertise in the room, and efforts were made to ensure a representative mix of participants within each group. Each group was moderated by one of the workshop facilitators. The groups discussed the following questions:

  1. How has the criminal law affected your practice?
  2. What can public health professionals do in response to the current criminal law?

The facilitators provided a synopsis of each of the group discussions and identified prominent themes and potential areas of action.

IV Findings

The discussions revealed considerable variation in experience with and insight about the issue of criminalization of HIV non-disclosure and its impact on public health practice. Some participants claimed that the decisions had not had any impact, while others reported that criminalization has been taken into consideration in terms of how they engage in their work. From these diverse experiences, the groups identified a number of key concerns and made recommendations for future action.

V Key Concerns

Practitioners expressed a number of concerns about how increased HIV non-disclosure prosecutions affected their practice, such as:

  • An inability to document consultations in detail for fear that these files could be subpoenaed in the event of criminal charges being laid.
  • Difficulty establishing positive rapport with PHAs because clients may be fearful that what they share may be used against them in court.
  • Diminished trust of patients regarding the protection of their confidentiality.
  • Concern about the quality and thoroughness of counselling pre- or post- diagnoses because of the lack of clear guidelines.
  • Fear of liability for providing incorrect information.
  • Concern that testing and reporting of risk behaviours may decrease, which will adversely affect public health efforts to minimize the transmission of HIV/AIDS.

VI Recommendations for Future Action

The workshop solicited recommendations that would help mitigate the adverse impact of HIV criminalization on public health efforts. Recommendations included:

Education and Advocacy

  • Educate police and prosecutors about HIV transmission, risk behaviours, and rates (e.g., HIV 101 training).
  • Use the civil law system in order to demonstrate that a person has violated their duty of care by engaging in a sexual act while not disclosing their HIV status, thereby resulting in an act of negligence.

New Tools

  • Develop prosecutorial guidelines that provide guidance regarding when it is appropriate to pursue charges (e.g., based on intent to transmit or cause harm) and what mitigating factors might suggest criminal charges are inappropriate.
  • Develop guidelines and models for counselling about disclosure.

Leadership, Coordination, and Collaboration

  • Build leadership within the public health system to address this issue.
  • Engage policy-makers at the federal level.
  • Increase coordination, communication, and collaboration between the criminal justice system and the public health system.
  • Encourage diversion of criminal cases to the public health system

VII Conclusions

The criminal law and public health systems are currently not working in concert with one another to address the issue of HIV non-disclosure and its impacts on HIV transmission. While both systems claim to have the same objective of protecting the public, the lack of consistency in practice and understanding propagates an aura of fear amongst PHAs, public health practitioners, and the general public. PHAs are left feeling uncertain and fearful about what human interaction may cause them to be scrutinized or sanctioned by the criminal justice system. At the same time, public health practitioners fear that their documentation may be subpoenaed or their units held liable for failure to recognize and alert sexual partners. Lastly, the stigma surrounding HIV is further heightened from media coverage of HIV non-disclosure cases even before a decision has been made. This trifecta of factors makes the criminalization of HIV non-disclosure a ‘wicked’ problem, with no single solution.

However, as the findings of this workshop suggests, increased collaboration between criminal law and public health professionals seems like a promising way to mitigate the potential negative impacts of the criminalization of HIV. A greater response led by public health practitioners, organizations, and institutes about this issue is warranted to address the implications of criminalization of non-disclosure and advance prevention efforts.

VIII Resources

CIHR Strategic Training Program in Public Health Policy at the University of Toronto, Dalla Lana School of Public Health

Canadian Aids Society, 2004, HIV Transmission: Guidelines for Assessing Risk$FILE/HIV%20TRANSMISSION%20Guidelines%20for%20assessing%20risk.pdf

Canadian HIV/AIDS Legal Network 5th Symposium on HIV, Law and Human Rights and 2013 Annual General Meeting Thursday, June 13 – Friday, June 14, 2013, Toronto

HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario

Legal and Clinical Implications of HIV Non/Disclosure: A Practical Guide for HIV Nurses in Canada

Positive Women: Exposing Injustice documentary

Recommendations for Police: Criminalization of HIV Non-disclosure
HALCO and the Canadian HIV/AIDS Legal Network made submissions to the Ontario Association of Chiefs of Police Diversity Committee in February 2013.