Mabior and D.C.: Does HIV Non-Disclosure Equal Rape? (Part 1)

February 7, 2012

On February 8, the Supreme Court of Canada will hear Crown appeals in two cases that will determine whether and when people living with HIV are to be treated as rapists under Canadian law.

In R v Mabior, 2010 MBCA 93, and R v DC, 2010 QCCA 2289, the Manitoba and Quebec Courts of Appeal, respectively, determined that a person living with HIV was not guilty of aggravated sexual assault for not having disclosed his or her status because, in certain circumstances, there was no “significant risk of serious bodily harm” — the threshold triggering the duty to disclose that was articulated by the majority of the Supreme Court of Canada some 14 years ago in R v Cuerrier, [1998] 2 SCR 371.

In each appeal, the Crown seeks to do away, in whole or in part, with this limitation on the law and to expand radically the ambit of the criminal law. In contrast, the defence and numerous interveners, including the Canadian HIV/AIDS Legal Network (for whom we speak), have argued that, at a bare minimum, such a limitation must be retained and should be refined to achieve much-needed clarity about when the law may require disclosure upon pain of criminal penalty for not disclosing. (The Court could also provide additional guidance that would ensure the heavy hand of the criminal law is further limited so as to be reserved for the most blameworthy cases.)

The Need for Both Clarity and Fairness

All parties agree that the lack of clarity in the Cuerrier standard has produced more than a decade of confusion and uncertainty.  This has been particularly the case for people living with HIV, but also for health professionals and community agencies working in the field of HIV prevention and care. Furthermore, the unfairness that McLachlin J (as she then was) predicted would arise from the lack of clarity in the majority’s approach has been evident as well.  The same conduct, posing the same risk of harm (or lack thereof), has been prosecuted in one case or province but not another, and has resulted in both convictions and acquittals.

In one particularly extreme case, a man living with HIV was charged with aggravated sexual assault, and his identity repeatedly broadcast in the media, simply for allegedly performing oral sex a few times on his ex-partner - conduct that could not pose more than an infinitesimal risk of transmission at the very most.

Yet the prosecution’s proposed “solution” before the Supreme Court in the Mabior and D.C. appeals is to eliminate uncertainty by compounding the unfairness - that is, by doing away with the existing (imperfect) limitation on the criminal law in cases of HIV non-disclosure.  Indeed, the Manitoba Prosecution Service argues in Mabior that disclosure of HIV-positive status is required in all cases, and that the “fraud” of not disclosing should be treated in law the same as forced sex - regardless of the risk of harm. Rather than basing the application of the criminal law on an objective assessment of whether a person poses a real risk of harm, the Crown asserts that no consent to a sexual encounter can be legally valid unless the HIV-positive partner has disclosed her or his status to the (ostensibly) HIV-negative partner.

Yet can it be justified to criminalize every sexually active person living with HIV for not claiming proactively this stigmatized identity even in cases where there is no appreciable risk (such as where measures have been taken to reduce the already small risk of transmission attendant upon a given act)? As discussed further below the argument rests entirely upon a view of how “consent” should be defined in law that is troublingly simplistic and overbroad.

The prosecution maintains that the law does not single out people living with HIV - and to be fair, there is the potential for criminal prosecution for not disclosing other sexually transmitted infections. This, if nothing else, should give some pause to those whose rush to judgment against people living with HIV might be rooted in part in an inability or unwillingness to consider such a rule of any potential relevance to their own circumstances.  Indeed, in the last few years, there have been a small handful of cases of people prosecuted for aggravated sexual assault for not disclosing viral hepatitis or, more recently, herpes - a legal development that ought to be of concern to the 20-25% of Canadians with the latter virus.

Yet the reality, confirmed by a survey of prosecutions to date, and evident time and again from a review of testimony and argument at trial, is that this application of the law is driven by an exaggerated sense of HIV risk above all else. More than 130 people living with HIV in Canada have now faced some of the most serious charges in our Criminal Code, including in cases where there was no transmission or even a significant risk of transmission. Such prosecutions continue to generate fear and stigmatization, directly affecting the lives of some of the most vulnerable in our communities and undermining broader efforts for HIV prevention and care.

It would be a mistake to cure uncertainty in the law by compounding its injustice. And a sweeping, unjust application of the law is precisely what the prosecution in these appeals is urging - criminalize every person with HIV who does not disclose, regardless of whether there was a risk of transmission.  In our view, such a radical extension of the criminal law is unwarranted. It ignores science, runs contrary to the bulk of the jurisprudence to date, and disregards sound public policy reasons to limit the law to the most blameworthy cases.

It is based on these very factors that interveners such as the Canadian HIV/AIDS Legal Network and AIDS organizations from across the country have urged the Court in these appeals to retain the significant risk test but to remove some of its current uncertainty by clearly articulating that there is no crime for HIV non-disclosure when:

• a person uses condoms for vaginal or anal sex;
• a person has a low or undetectable viral load at the time of the sexual encounter (unless the prosecution can nonetheless establish other factors beyond a reasonable doubt that would give rise to a “significant risk” of transmission); or
• a person engages in oral sex, with or without the use of a condom or other latex barrier.

In our submission, such clarifications of the current legal standard would accord with the science, would be consistent with the bulk of decided cases to date, and would best reflect public policy objectives of effectively responding to the HIV epidemic.

The Law Should Evolve With Science

In 1998, when Cuerrier was decided, on the basis of an evidentiary record dating back to 1992, the Supreme Court, concerned about at least some of the pitfalls of over-criminalization, chose to limit liability for non-disclosure of HIV (or other sexually transmitted infections) to those cases where there is a “significant risk of serious bodily harm.” Now, with the benefit of two decades of further research, we have a greater appreciation that HIV is difficult to transmit and that, in many cases, the risk is insignificant.

For example, condom use reduces the risk of transmission by 80% according to the most commonly cited review of the evidence. (Some other, more recent reviews put the figure even higher.) Since 1996, there have also been dramatic breakthroughs in HIV treatment that also advance the cause of preventing HIV transmission. As recognized by the Courts of Appeal below in Mabior and D.C., effective use of antiretroviral drugs, which is now the standard of care in high-income countries such as Canada, lowers the “viral load” of a person with HIV to extremely low or even “undetectable” levels.

Last year, results from the largest study to date found that getting people on treatment early reduced the risk of transmission by 96% (M.H. Cohen et al, “Prevention of HIV-1 Infection with Early Antiretroviral Therapy,” New England Journal of Medicine 2001; 365: 493-505). Applying such a reduction to the standard estimated risk of HIV transmission associated with unprotected vaginal sex would mean an estimated per-act risk of transmission of 1 in 31,250 or 0.0032%.

We note such figures precisely because there has too often been an inflated perception of people living with HIV as posing a dire threat to the health and safety of others - and because there is a need for heightened vigilance in such circumstances against the possible misuse of the criminal law rooted in misinformation and fear.

Courts' Attempts to Clarify the Cuerrier Standard

It is worth noting as well the prosecution argument in Mabior and D.C. that the criminal law regarding HIV non-disclosure cannot and should not be based on assessments of the risk of transmission. Yet it should also be remembered that there are other provisions in our criminal law in which liability is indeed dependent on surpassing a particular numerical threshold representing a risk of harm - consider the treatment of driving under the influence as but one example. And in all sorts of cases, criminal and otherwise, courts regularly assess expert scientific evidence as part of determining how and when to apply the law.

Indeed, numerous lower courts have, since Cuerrier, managed to interpret and apply the “significant risk” threshold in making determinations about the duty to disclose and criminal liability (or lack thereof) for not disclosing. Until recently, the bulk of those cases have, for example, taken the correct view that the use of condom would preclude criminal liability for not disclosing.

Yet there remains a degree of uncertainty and inconsistency in the law that is troubling, given some of the prosecutions that have been witnessed - and some recent trial judgments that would dispense entirely with any assessment of the risk of harm. The federal criminal law should be uniform across the country, it should provide clear advance notice as to what is prohibited and liability for the same conduct should not depend on whether one jury’s assessment of sex with condoms is or is not risky enough to be considered “significant.”

It is here that the Supreme Court has a key role to play in refining and clarifying the law, in accord with good science and with larger public policy objectives, so as to give clear guidance to lower courts that certain conduct - e.g., sex with condoms, or sex in circumstances where there is a low or undetectable viral load - falls below the criminal legal threshold of “significant” risk.

Richard Elliott and Alison Symington are with the Canadian HIV/AIDS Legal Network. Read more about the appellate level decisions in Mabior and D.C. here.