Canada: How HIV can turn you into a criminal

The result thus far? There are the blaring headlines from an uninformed mainstream media, like in the case in March at Canadian Forces Base Borden, where 31-year-old Jennifer Murphy, who has AIDS and kept it to herself, was charged with two counts of aggravated assault after allegedly having unprotected sex with men stationed there. And there’s an approach to HIV infection issues that seems to allow people to shun responsibility for their own health, while HIV-positive people are portrayed as potential killers on the loose.

Rita Shahin, associate medical officer of health with Toronto Public Health, says her sense is that the majority of complaints regarding HIV infection are from straight, not gay people.

“Most often the people complaining are women, not men,” says Shahin. “The few complaints I have received from gay men are usually complaints about activities going on in a specific venue, not complaints about individuals.”

These kinds of complaints seem to imply that people don’t know that unprotected sex could lead to transmission of HIV/AIDS – and gay men certainly can’t make that claim. Still there are other motivations for blaming others for a newly acquired HIV infection (see sidebar story).

Catherine Allen of the HIV And AIDS Legal Clinic (Ontario) (HALCO) says it is not a crime to transmit HIV. What is a crime is to put someone at substantial risk of HIV infection and not warn them.

When a person claims to have been given HIV by a sexual partner, two things can happen. Public health legislation gives public health units the authority to control the spread of communicable diseases by investigating each complaint. Shahin says that even though there are thousands of people in Toronto living with HIV, only a handful of complaints are received each year.

“My sense is that a vast majority [of complaints] are legitimate and very few – one to two per year at the most – may be malicious,” she says, though she points out that cases are not tracked.

Anonymous, third-party complaints or those seemingly malicious in nature can be difficult to follow up on. If a specific individual is named, at the minimum Toronto Public Health would contact and inform that person. Their version of the story would be assessed and they would be counselled about the need to disclose their status to their partners before penetrative sex. The physician of the alleged infector (there is no specific term Toronto Public Health uses to describe a person alleged to pass on the virus) might also be notified, and a mental health assessment could be requested.

Shahin says they attempt to deal with each situation in a sensitive manner, although multiple independent complaints about the same person may be additional evidence of someone’s behaviour.

“We have had situations where we have either had repeated complaints about an individual or they themselves have told us they will not disclose to sexual partners despite counselling,” says Shahin. “We attempt to work with clients in a manner that is least intrusive first, such as working with their healthcare provider, or attempting to help them access community supports that may facilitate behavioural change.”

If this fails, Toronto Public Health has the ability to issue orders under the Ontario Health Protection And Promotion Act. An order can require an individual to take certain actions to reduce the risk of spreading communicable diseases, such as disclosing to sexual partners prior to penetrative sex, and the use of condoms. Under this legislation, only reasonable and probable grounds of a possible health risk are necessary, not absolute proof. In Toronto very few such orders are issued yearly and only as a last resort.

“It is also not unusual to have people admit to us that they are not disclosing, especially in anonymous situations such as bathhouses or through Internet sites,” says Shahin. “Some individuals believe that if they are meeting partners through certain venues, everyone there is HIV-positive and there is no need to disclose. We do remind them through our counselling that they still have a duty to disclose to their partners, especially since others may not share that assumption.”

The police can also be brought into the matter when one person claims another has infected them with HIV. Shahin says Toronto Public Health is concerned about protecting the confidentiality of their clients and wouldn’t bring the police into any situation, though they might point the accuser in the direction of the Toronto Police Service’s Sex Crimes Unit.

When police pursue a case where someone claims to have been exposed to HIV or infected without their consent, the charge is usually sexual assault, which can be punishable by up to 10 years in jail (lesser summary conviction charge can result in up to 18 months in jail).

“The person must obviously be aware he is HIV-positive and is intentionally infecting people,” says Staff Insp Joe Tomei of the Sex Crimes Unit. “It has to be an extremely overt and malicious act.” Tomei says he hasn’t seen any data on whether there are more charges involving gay or straight people.

With so much hinging on whether people are aware of their HIV status, what happens if you infect someone with HIV without knowing that you yourself are positive? Or what happens if you become HIV-positive by consent, if an HIV-negative person has unsafe sex with a person they know to be HIV-positive?

Ruth Carey, executive director of HALCO, says people who are unaware they are HIV-positive have no risk of criminal or civil liability – but that could change.

Contained in the 2003 Supreme Court Of Canada case of R versus Williams, Carey says there’s a hint “that a person who was willfully blind to their own status might in the future be deemed to be in the same position as a person who had actual knowledge of their infection.”

While the court’s remarks did not change current law, they did point police and courts toward future prosecutions, musing that the courts may be asked to distinguish between recklessness (where a person knows they are HIV-positive but chooses not to forewarn partners) and willful blindness (where a person suspects there should be HIV testing done but chooses not to).

HALCO’s not keen on too much criminalization.

“Criminal law is a very blunt instrument that should only be resorted to in the most serious of cases where public health measures to stop the person’s behaviour have first been tried and failed,” says Carey.

There is also debate about what the charge should be. Sometimes police charge people with sexual assault, sometimes with criminal negligence causing bodily harm, which has a maximum sentence of 10 years in jail. (Murder charges are almost impossible because the statute requires that the death occur within one year and one day of the act. HIV/AIDS doesn’t act that quickly.)

Carey says most instances of HIV transmission that might be appropriately criminalized sit better with the language of criminal negligence than assault. As she points out, when we speak of a failure “to take precautions” or to “reduce the risk of infection,” we are implying that a person can also take care to prevent harm – and should do so. This approach is seen as preferable to the arguments used in sexual assault: that nondisclosure of HIV status is fraud, invalidating any consent. After all, sexual assault traditionally means using force, rather than failing to provide information.

Carey says there is much misinformation. A CTV report in March stated that people with HIV are legally required to disclose their HIV status. On its website, CTV reported: “In the eyes of the law, someone can’t consent to sex if they are not fully informed about their partner’s HIV status. In such cases, they are considered alleged victims of assaults.”

“These misstatements do not in any way address the fact that only when there is a significant risk of transmission is the law regarding nondisclosure vitiating consent applicable,” says Carey. “These media statements lead people to believe that they will always be told by their potential partners if their partner is HIV-positive and if they’re not, it’s illegal. This is a dangerous misperception for sexually active individuals to have. Just think about it. Can’t you just hear people thinking to themselves: ‘Oh, he hasn’t told me he has HIV. That means he must not have it. So we can skip using condoms and I’ll be safe.'”