On last April 4th, Johnson Aziga from Ontario was found guilty of ten counts of severe sexual assault and two counts of premeditated murder for having had unprotected sexual relations while being HIV positive; two of his partners died from the effects of the virus. Even though the severity of the murder verdict is a world first, his case is not an isolated one—from a critical point of view in terms of the use of criminal law in the fight against HIV and with respect to certain aspects of the current state of law in Canada.
Since the beginning of 2009, approximately a dozen lawsuits have been observed across the country for exposure to HIV. Going back to the end of the 1980s, this number increases to close to a hundred. In Canada, the first HIV-related criminal accusation was made against a person who had donated infected blood. A lawsuit has already been filed against an individual who deliberately exposed others to infected blood during a fight. Another took place during a mother-to-child transmission case. However, the majority of the cases concern consensual sexual relations with risk of transmission with the omission of disclosure of HIV-positive status on behalf of the HIV-positive person. This is the particular situation that is the most controversial.
Functions of criminal law and the impacts on public health
The number of criminal lawsuits for exposure to HIV has constantly increased since the beginning of the 2000s and Canada is the country where the highest rate of these lawsuits is found. First of all, if we believe that the main objective of the fight against HIV remains the prevention of new infections, there is a danger of getting further away from an approach that focuses on education and counselling and getting closer to an approach that fosters coercion. Even if the criminalization of HIV exposure is often perceived as a response to the failures and limitations of public health strategies to control the epidemic, there is a national consensus to the effect that it is likely to cause more harm than good. Aggravation of the stigmatization of HIV-positive people, reduced access to counselling and support services, dissemination of erroneous information on HIV/Aids and the development of a false sense of security are some of the consequences. Also, history shows out of hand that the use of coercive means by the State is ineffective with respect to the modification of human behaviours as complex as drug and alcohol consumption or sexual practices. Moreover, the little empirical scientific study that exists that focuses on the particular HIV case also does not allow to reach the conclusion that criminal law adequately fulfils its functions in terms of dissuasion, neutralization and rehabilitation. Nothing proves that it dissuades HIV-people from adopting high-risk behaviours or that it incites them to disclose their medical condition to their sex partner. To make matters worse, it instills a climate of fear that hinders disclosure. It does not help in neutralizing the “offenders” either—since prison is recognized as a place where high-risk sexual practices are commonplace.
For a high level of intention of guilt
In addition to the three other aforementioned functions, criminal law also has a punitive role to play within a society—a function that is supported by the advocates of criminalization. In this case, it would only be on the basis of a high degree of mens rea, which is a “clearly blameworthy” state of mind, that it would be possible to file a lawsuit for strictly punitive ends. Even though other points of view may exist, the UNAIDS recommends that only the cases of intentional transmission be criminalized—meaning that it recommends the use of a subjective mens rea where the accused has the intention of transmitting the virus.1 A lower level of penal responsibility such as negligence, which criminalizes the person who is far removed from the standards of a responsible individual, entails the risk that prejudices and pre-established notions about HIV-positive people may taint the perception of a judge or jury. In terms of sexuality, a standard is difficult to establish. In short, the degree of adequate mens rea is a central issue in the determination of parameters for the criminalization of exposure to HIV or its transmission. To that effect, to what extent does the state of Canadian law respect the UN’s recommendations? Is its discourse at least coherent with that of public health?
Intention of guilt and severe assault and battery
In Canadian criminal law, it seems that in a context of sexual relations that involve a “significant risk of severe corporal lesions” all HIV-positive people are legally obligated to disclose their HIV-positive status. A non-disclosure of this status—or a lie on this matter—is considered to be a fraudulent act that contaminates the partner’s consent. This reasoning, already established in court, was confirmed by the Supreme Court in 1998 with the Cuerrier Decision—the first time that the highest authority in the country made a decision on the issue. Hence, the act can be transformed into severe assault and battery. A type of assault that is among the most severe in the Criminal Code of Canada, it is now the most common charge in the post-Cuerrier legal landscape, along with severe sexual assault. The HIV-positive person does not need to have the specific intent of transmitting the virus to establish the main element of the mens rea. Lying or knowingly concealing one’s state of health is sufficient for the act to be considered dishonest. The “dishonesty” is evaluated in accordance with the standard for a reasonable person: it is therefore a matter of “objective” criteria. The use of the assault charge can be criticized in relation to the UNAIDS’ recommendations.
History clearly shows that the use of corrective measures by the State is ineffective with respect to the modification of human behaviour as complex as drug and alcohol consumption or sexual practices.
Public health and criminal law: two different views
With this broadened interpretation of the severe assault charge, the Supreme Court takes for granted that “the primary responsibility in terms of disclosure is incumbent on those who know that they are infected.” Shouldn’t people who consent to unprotected sexual relations, through the consent, also be considered to be consenting to a certain risk and assume responsibility for protecting themselves? The construction of this type of legal discourse around fraud and the disclosure obligation is getting further away from the notion of “shared responsibility” that was set forth in the 1990s by the public health authorities and community groups. According to this concept that is centred on prevention and education, each person is responsible for their own sexual health and is capable of self-protection. This public health policy recognizes that it is not a good idea to depend on the disclosure of the serological status of a partner since a significant number of transmissions arise in cases where people are unaware of their HIV-positive status. From a public health standpoint, consciously choosing to have an unprotected sexual relation entails risks that cannot be avoided just by asking the partner a question. From a criminal perspective, an at-risk but otherwise consensual sexual relation is a different act than a forced and violent sexual relation which severely affects a person’s autonomy.
Conclusion
11 years after the Cuerrier Decision, it is still topical to wonder if criminalizing HIV exposure in a context of at-risk sexual relations through assault is appropriate. And from a broader scope, the use of criminal law to deal with a public health issue will always present its own legal and social pitfalls, if only in the choice of offence2 that would succeed in restraining, as much as possible, law suits for deliberate transmission cases.
BARRY D. et al. Effects of the criminalization of HIV transmission in Cuerrier on men reporting unprotected sex with men, 2008.
BURRIS et al. Do criminal laws influence HIV risk behaviour: an empirical trial, 2006. Criminalisation Global Scan (CGS) : http://www.gnpplus.net/crimina... (Consulted on-line on April 17, 2009)
ELLIOT, Richard. Droit criminel et VIH/Sida : Rapport final, 1997. Organisation des Nations Unies pour le sida (ONUSIDA). Droit pénal, santé publique et transmission du VIH : Étude des politiques possibles, 2002.
R. c. Cuerrier. 1998 2 RCS 371 (Cour suprême du Canada)
R. c. J.I. 2006 ONCJ 356 (Cour de Justice de l’Ontario)
R. c. McKenzie. 1993 (non publié) (Cour du Québec à Trois-Rivières)
R. c. Williams. 2 2003 RCS 134 (Cour suprême du Canada)
JURGENS, Ralf et al. 10 raisons de s’opposer à la criminalisation de la transmission du VIH ou de sa transmission, 2008.
Réseau juridique canadien VIH/Sida (RJC). La criminalisation de l’exposition au VIH : l’état actuel du droit canadien, 2008.
Symington, Alyson. More light, less heat: it’s time for rational discussion and guidelines about criminal prosecutions for not disclosing HIV, 2009.
United Nations for AIDS (UNAIDS). Policy Brief: Criminalization of HIV Transmission, 2008.
1 In contrast, an “objective” evaluation standard intervenes when a gap is observed between the acts of the person at fault and that of the “reasonable” person. In many infringements, objective and subjective criteria can intervene.
2 It is not recommended to create new infractions that criminalize exposure to HIV or its transmission (UNAIDS 2002).
Source: Porte Ouverte, Bulletin de l’association des services de réhabilitation sociale du Québec, volume XXII, numéro 1, 2009, p.17, 18.
