Editorial: Criminal Law versus Public Health

(version française)

The final scene of the first act of a painful saga played out in a Longueuil courtroom on the afternoon of Tuesday, 8 July 2008. It was at this time and place that a judge of the Criminal Division of the Court of Québec pronounced the sentence of a woman who had been found guilty of aggravated assault and sexual assault for a single instance of having had sexual relations with a man without having disclosed her HIV status to him. It is important to note that the judge in the case had not believed her testimony that a condom had been used. The sentence: one year, to be served in the community, followed by one year of probation.

Somewhere in the background of this case are the facts that make this outcome additionally difficult to accept. To summarize these facts briefly, the woman had met the man in a context where their two children were playing soccer together and she had not disclosed her status to him out of consideration for the possible impact on her own child and the belief that their encounter would be brief. When he wished to pursue the relationship, she did disclose her status, and, after a period of time he took to come to terms with her disclosure, he did return to pursue the relationship and they were involved for as long as four years. The complaint against the woman was made during the trial of her 'victim' on charges of having physically assaulted her at the end of their relationship. He was convicted on those charges, but received an absolute discharge (no penalty, no record) when his complaint against her was shared with the court in the context of his sentencing.

The take-away messages of this outcome, and of the use of criminal law in the realm of exposure to a risk of transmission of HIV, are not easy.

First, there is the inconsistency of the messages of public health authorities versus criminal prosecutors. The former continue to insist that HIV prevention is a shared responsibility, each person being expected to protect self and partner, while the latter places the whole responsibility on the shoulders of the HIV-positive person.

Second, in this particular case, we seem to be receiving the message that to physically assault someone is excusable if that person turns out to be HIV-positive, but the non-disclosure of one's HIV status — even on a single occasion — is criminally punishable.

Third, it seems that there is no time limit on the possibility of filing a criminal complaint for a single incident of non-disclosure. While Canadian criminal law does not generally contain such limitations, it still strikes me as an apparent injustice that a four-year consensual relationship in the knowledge of a partner's HIV status does not somehow excuse the non-disclosure of status on one occasion that preceded it. We are all aware of the many factors that can influence a decision to disclose or not. The shame of this is that there seems to be no limit on the ability to use the unfortunate choice we might make to not disclose at one moment in time as a weapon against us for the rest of our lives.

None of these messages helps with the role of public health in trying to reduce transmission of HIV and to improve the quality of life of people living with HIV.

Public health authorities estimate that as many as one third of people living with HIV are not aware of their status. In the absence of this knowledge and of any symptoms that would lead a reasonable person to believe he or she is infected with HIV, these people are not criminally responsible for exposing others to HIV. There is a hidden incentive here to remain ignorant of one's HIV status so as not to bear the burden of criminal responsibility with respect to unprotected sexual relations. This is unfortunate for the outcome of HIV prevention, as studies show that the immediate impact of diagnosis is a change in behaviour that reduces risk-taking.

It seems that the message sent to HIV-negative individuals is that they have no responsibility to adopt safer sexual practices, because the responsibility of stopping HIV transmission rests entirely on the shoulders of those who are HIV-positive.

A great barrier to disclosure of one's HIV status is the results that it might bring. If a person discloses her or his status and is met with irrational fear, rejection, stigma and discrimination, how can we expect that person to disclose the next time around? We have to do more work on society's reactions to HIV before we can expect all people living with HIV to be completely open about their status.

Is there any place in these equations for criminal law? Maybe. There are rare, but difficult cases of individuals deliberately and repeatedly exposing others to HIV, despite interventions from public health authorities. Those might justify criminal interventions, but that was not the case that was decided this week.

In an ideal world, people living with HIV would be able to freely disclose their status to their partners and would be met with understanding and a common effort to prevent transmission. Sufficient resources would be devoted to ensuring that the rights and interests of people living with HIV would be respected, and that those having difficulties coming to terms with their status would have sufficient support to do so. The messages of public health and justice would be clear and complementary instead of contradictory. And everyone would feel responsible for protecting her/himself and her/his partners during their sexual encounters.

I think we all long for that ideal world.

Ken Monteith
Executive Director