HIV non-disclosure & sexual consent
The following is a (long-ish) post covering the history of HIV non-disclosure criminalization in Canada and an overview of the current legal landscape. In Canada, non-disclosure of HIV+ status is considered to be fraud that undermines consent. This post also outlines Patten & Symington’s argument that non-disclosure ought not be a sexual offense.
Scroll to the end for questions our seminar discussed! Reactions to these questions in the comments are welcome.
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In Canada and many other countries around the world, there are legal statutes specifically addressing the exposure, transmission and non-disclosure of HIV. As of 2017, Canada had the third-largest absolute number of prosecutions for HIV non-disclosure in the world. Failure to disclose HIV-positive status to a sexual partner when there is “significant risk of transmission” is considered a violation of dignity and autonomy that vitiates consent. As such, most HIV non-disclosure cases are prosecuted as cases of aggravated sexual assault*.
The Canadian legal approach to HIV non-disclosure was established by the Supreme Court’s 1998 decision in the Cuerrier case. Cuerrier had sex with two women, and neither disclosed his HIV positive status nor used condoms to prevent transmission. The Supreme Court of Canada (SCC) ruled that his partners’ consent was undermined; they reasoned that failing to disclose the “significant risk of bodily harm” amounted to “fraud”. The SCC has since revisited the issue, reaffirming in 2012 that in cases of significant risk, there is a duty to disclose one’s HIV-positive status. The court clarified the criteria for “significant risk” as well; there is no duty to disclose only when the person living with HIV has a low or undetectable viral load and uses a condom. As of the 2012 ruling, there is no consent to sexual activity when there is a “realistic possibility of transmission”, and the partner would not have consented to sex had they known their partner’s HIV status. In other words, the requirements to secure a sexual assault conviction in a case of HIV non-disclosure are for the prosecution to prove that: (a) the HIV-positive partner did not disclose, (b) that there was a realistic possibility of transmitting HIV, and (c) that HIV-positive status was a deal-breaker for the sexual partner**.
In The Blunt Instrument of the Law, San Patten & Alison Symington call for law-reform to “remove cases of HIV non-disclosure from the sphere of consent and sexual assault” (56). They argue that the current legal approach in Canada does injustice to those individuals charged, does not protect sexual dignity and autonomy, and impinges on the capacity of the criminal justice system to address cases of actual sexual violence. Cases of aggravated sexual assault typically involve grievous injury or bodily harm and extreme violence, those who are convicted face maximum penalties of life in prison and registration as a sex offender. Most cases of HIV non-disclosure lack these features, and Patten & Symington argue that application of sexual assault laws to non-disclosure cases may distort the law. They grant that non-disclosure may be a means by which to “exploit/abuse” a sexual partner, but that it is rare for non-disclosure to be the only behavior in the sexual relationship that is abusive in such cases. Isolating HIV non-disclosure as a behavior to be met with harsh legal penalty is not in keeping with advances in medical science.
There have been many calls in recent years for legal reform with regard to the criminalization of HIV. The Joint United Nations Programme on HIV/AIDS (UNAIDS) published a note in 2013 indicating that legal statutes and prosecutions concerning HIV have failed to consider and adapt to advancements in HIV science regarding transmission risk and treatment. In 2018, a group of 20 scientists from around the world produced an Expert Consensus Statement on the science of HIV in the context of criminal law. They cautioned those working in legal and judicial systems to carefully consider the significant advances in HIV science in recent decades. Key findings summarized by the report include that:
In Canada and many other countries around the world, there are legal statutes specifically addressing the exposure, transmission and non-disclosure of HIV. As of 2017, Canada had the third-largest absolute number of prosecutions for HIV non-disclosure in the world. Failure to disclose HIV-positive status to a sexual partner when there is “significant risk of transmission” is considered a violation of dignity and autonomy that vitiates consent. As such, most HIV non-disclosure cases are prosecuted as cases of aggravated sexual assault*.
The Canadian legal approach to HIV non-disclosure was established by the Supreme Court’s 1998 decision in the Cuerrier case. Cuerrier had sex with two women, and neither disclosed his HIV positive status nor used condoms to prevent transmission. The Supreme Court of Canada (SCC) ruled that his partners’ consent was undermined; they reasoned that failing to disclose the “significant risk of bodily harm” amounted to “fraud”. The SCC has since revisited the issue, reaffirming in 2012 that in cases of significant risk, there is a duty to disclose one’s HIV-positive status. The court clarified the criteria for “significant risk” as well; there is no duty to disclose only when the person living with HIV has a low or undetectable viral load and uses a condom. As of the 2012 ruling, there is no consent to sexual activity when there is a “realistic possibility of transmission”, and the partner would not have consented to sex had they known their partner’s HIV status. In other words, the requirements to secure a sexual assault conviction in a case of HIV non-disclosure are for the prosecution to prove that: (a) the HIV-positive partner did not disclose, (b) that there was a realistic possibility of transmitting HIV, and (c) that HIV-positive status was a deal-breaker for the sexual partner**.
In The Blunt Instrument of the Law, San Patten & Alison Symington call for law-reform to “remove cases of HIV non-disclosure from the sphere of consent and sexual assault” (56). They argue that the current legal approach in Canada does injustice to those individuals charged, does not protect sexual dignity and autonomy, and impinges on the capacity of the criminal justice system to address cases of actual sexual violence. Cases of aggravated sexual assault typically involve grievous injury or bodily harm and extreme violence, those who are convicted face maximum penalties of life in prison and registration as a sex offender. Most cases of HIV non-disclosure lack these features, and Patten & Symington argue that application of sexual assault laws to non-disclosure cases may distort the law. They grant that non-disclosure may be a means by which to “exploit/abuse” a sexual partner, but that it is rare for non-disclosure to be the only behavior in the sexual relationship that is abusive in such cases. Isolating HIV non-disclosure as a behavior to be met with harsh legal penalty is not in keeping with advances in medical science.
There have been many calls in recent years for legal reform with regard to the criminalization of HIV. The Joint United Nations Programme on HIV/AIDS (UNAIDS) published a note in 2013 indicating that legal statutes and prosecutions concerning HIV have failed to consider and adapt to advancements in HIV science regarding transmission risk and treatment. In 2018, a group of 20 scientists from around the world produced an Expert Consensus Statement on the science of HIV in the context of criminal law. They cautioned those working in legal and judicial systems to carefully consider the significant advances in HIV science in recent decades. Key findings summarized by the report include that:
- There is no possibility of HIV transmission when an intact condom is properly used
- There is no possibility of transmission when the HIV-positive partner has an undetectable viral load.
- The risk of HIV transmission during a single sexual act ranges from low to none.
- The risk of HIV transmission when the HIV-positive partner has a low viral load ranges from negligible to none.
- Progress in the development of antiretroviral therapies has made living with HIV a manageable chronic health condition with similar life-expectancy to that of HIV-negative people (for those with reliable access to medical care).
Despite these scientific advances, Canadian law continues to make use of court decisions that mention the possibility of “permanent, incurable, life-altering and potentially fatal” consequences associated with contracting HIV. The fraud provisions of Canadian law have overwhelmingly been applied to cases of HIV non-disclosure, even though it is theoretically possible to apply these provisions to other types of deception. That such laws are upheld and individuals continue to be prosecuted under them is understood by Patten & Symington to be symptomatic of the intense stigma associated with HIV+ status.
It is interesting that Patten & Symington argue primarily for cases of HIV non-disclosure to be prosecuted outside of the “sexual sphere”. They do not (in this particular paper) outline an alternative approach, though many countries do treat such cases as non-sexual crimes. It is not clear that these approaches are preferable. In Sweden, for instance, HIV exposure and transmission cases are prosecuted under statutes like inflicting “bodily injury” or “gross assault”; consent to unprotected sex by the uninfected partner even following disclosure does not negate the offense if transmission occurs. The Swiss Criminal Code allows for the prosecution of HIV exposure or transmission, even in the absence of a complainant, of anyone who attempts or in fact “deliberately spreads a dangerous transmissible human disease”. Consent to unprotected sex and/or disclosure does not negate the offense, even if no transmission occurs. Those who are interested in learning more about HIV-specific statutes around the world may be interested in the UNAIDS Background Paper on this issue.
The Canadian Department of Justice issued a Report (full PDF version here) in 2017, reviewing the justice system’s response to non-disclosure cases. They argue that advances in medical science should be reflected in non-disclosure law, to capture what scientific consensus now considers a “realistic possibility of transmission”. The report also considers whether HIV non-disclosure ought to be considered a sexual crime; the Department of Justice urges the law to reflect varying levels of culpability in non-disclosure cases by “resorting to non-sexual offenses for cases where transmission is not entirely the fault of the offender”. The rationale for classifying the crime as non-sexual in such cases is not especially clear; the report says that absent intent to “place others at risk purely for sexual gratification”, non-sexual offenses “more appropriately reflect the wrongdoing committed” (30).
It is interesting that Patten & Symington argue primarily for cases of HIV non-disclosure to be prosecuted outside of the “sexual sphere”. They do not (in this particular paper) outline an alternative approach, though many countries do treat such cases as non-sexual crimes. It is not clear that these approaches are preferable. In Sweden, for instance, HIV exposure and transmission cases are prosecuted under statutes like inflicting “bodily injury” or “gross assault”; consent to unprotected sex by the uninfected partner even following disclosure does not negate the offense if transmission occurs. The Swiss Criminal Code allows for the prosecution of HIV exposure or transmission, even in the absence of a complainant, of anyone who attempts or in fact “deliberately spreads a dangerous transmissible human disease”. Consent to unprotected sex and/or disclosure does not negate the offense, even if no transmission occurs. Those who are interested in learning more about HIV-specific statutes around the world may be interested in the UNAIDS Background Paper on this issue.
The Canadian Department of Justice issued a Report (full PDF version here) in 2017, reviewing the justice system’s response to non-disclosure cases. They argue that advances in medical science should be reflected in non-disclosure law, to capture what scientific consensus now considers a “realistic possibility of transmission”. The report also considers whether HIV non-disclosure ought to be considered a sexual crime; the Department of Justice urges the law to reflect varying levels of culpability in non-disclosure cases by “resorting to non-sexual offenses for cases where transmission is not entirely the fault of the offender”. The rationale for classifying the crime as non-sexual in such cases is not especially clear; the report says that absent intent to “place others at risk purely for sexual gratification”, non-sexual offenses “more appropriately reflect the wrongdoing committed” (30).
*Other criminal offenses have also been used to prosecute HIV non-disclosure.
** See Dougherty (2013) for a discussion on deal-breakers
** See Dougherty (2013) for a discussion on deal-breakers
Some questions we discussed in class:
- Some HIV non-disclosure cases have resulted in decisions that found that HIV+ status was an “essential feature” of the sexual act. Is/ought it be an essential feature? If so, why include the additional criterion that HIV+ status must be a deal-breaker for the uninfected partner? What other features are “essential”?
- Critics of the duty to disclose argue that fully informed consent is not enabled by mere disclosure. HIV+ individuals are often compelled to educate their partners on nuanced science with regard to HIV transmission risk and treatment. We might imagine this education process as presenting the partner with possible deal-breaker-breakers (facts such that, if the partner knew them, they would no longer hold HIV+ status as a deal-breaker). Is this framework helpful? Could someone be culpable/blameworthy for not knowing certain facts that would be deal-breaker-breakers? Can the presence of deal-breaker-breakers un-vitiate consent?
- Should culpability influence the classification of the crime as a sexual offense? Why?
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