Canada: Nova Scotia court acquits young man with undetectable viral load of aggravated sexual assault for HIV non-disclosure despite no condom use

by Cecile Kazatchkine, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

On November 8 2013, the Provincial Court of Nova Scotia in Canada released a very encouraging decision in a case of HIV non-disclosure. A young man with an undetectable viral load who had not disclosed his HIV positive status to his sexual partner before engaging in unprotected sex was acquitted of aggravated sexual assault.

The couple had engaged in vaginal sex on three occasions. Twice, they used a condom. On the third occasion, however, it was found that they had unprotected vaginal sex without ejaculation. At no time, did the young man disclose his HIV status. In fact, the judge found that he had actively concealed that he was HIV positive to his sexual partner who had inquired about rumours that he had AIDS.

In 2012, the Supreme Court of Canada ruled in R. v. Mabior and R. v. D.C., that a person living with HIV has a legal duty to disclose his or her HIV positive status to a sexual partner where there is a “realistic possibility of HIV transmission.” The Supreme Court was clear that where a condom is used and the HIV positive partner has a low viral load, there is no “realistic possibility of HIV transmission” and thus, no duty to disclose under the criminal law. These decisions were understood to mean that a person living with HIV must disclose his or her HIV positive status before having vaginal sex unless he or she uses a condom and has a low viral load.

None the less, the Provincial Court of Nova Scotia acquitted the young man, despite the factual finding that he had engaged in unprotected sex. The Court described two different routes to its conclusion.

The first route relates to the analysis of the consent given by the complainant. In Canada, one element that the prosecution must prove in a non-disclosure prosecution is that the complainant would not have consented to sex if he or she had known about his or her partner HIV positive status. At trial, the complainant testified that had she known that the accused was HIV positive she would not have had unprotected sex with him. But she also said that had she known that his risk of transmitting HIV was virtually non-existent, she would have consented.

As described by Justice Campbell, that the risk of transmission was infinitesimally small was the “true state of affairs” based on the evidence before the Court. Indeed, the unchallenged medical expert called by the defence testified that he did not believe that there was any risk of transmission in this case. He further concluded that “in an act of sexual intercourse someone with an undetectable viral load such as [the accused] had a one in one million chance of transmitting the virus. That might be as high as one in 500 000 (…)” and described the risk as “very close to zero.”

According to the Court, the complainant’s statement that had she known the extremely low degree of risk she would have consented to unprotected sex with the accused is part of the context that needs to be taken into account when determining whether the consent was vitiated or not. As summarised by Justice Campbell:

[t]o ignore [the complainant]’s acknowledgement that with full knowledge of the facts she would have had unprotected sex with [the accused] would amount to a strange privileging of half-truth, deception and misconception over truth. The truth is that she would have had unprotected sex with him had she known the facts. My conclusion is that her consent was not vitiated by the deception.

The second route relates to the realistic possibility of transmission. The Court found that that element had not been met either. This conclusion is at odds with the predominant interpretation of Mabior and D.C. — that unprotected sex, even with an undetectable viral load, would necessarily be considered as representing a “realistic possibility of transmission.”

In a recent decision, the Ontario Court of Appeal had ruled that there was no need for the Crown to bring medical evidence of “a realistic possibility of transmission” in each case. The Court of Appeal ruled that proving unprotected sex would be sufficient to establish “a realistic possibility of transmission” and that evidence of the accused’s exact viral load at the time and the associated degree of risk of HIV transmission would be irrelevant in such circumstances. (There was no medical evidence on the risks of transmission before the Ontario Court of Appeal or evidence of the accused’s viral load.)

The Provincial Court of Nova Scotia, however, did not accept that the Supreme Court of Canada or the Ontario Court of Appeal decisions had definitely closed the doors to different findings with respect to whether “a realistic possibility of HIV transmission” existed based on the medical evidence before the judge in a particular case. Concerned about the potential for discrimination against people living with HIV in the absence of any risk, the Provincial Court of Nova Scotia stated that the Supreme Court decisions “can and should be interpreted in a way that in not incompatible with an approach that respects both the scientific evidence in each case and the fact finding role of trial courts.” According to the Court, “[t]he Supreme Court did not intend (…) to impose evidentiary findings on trial courts that are incompatible with the evidence actually before those courts.”

In the case at bar, the medical evidence called by the defence was clear: the risk of transmission was approaching zero. The Court was careful to specify the risk determination was a finding of fact (versus a finding of law), specific to the case, and ruled that the legal conclusion arising from that fact was that, even in the absence of a condom, the legal test of a “realistic possibility of transmission” was not met.

This decision is an encouraging development in the law on HIV non-disclosure in Canada. While trial court decisions have limited precedential authority in the Canadian legal system, this decision remains important as it demonstrates that Mabior and D.C — which have been strongly criticised for being at odds with the science and previous case law — need not prevent science from prevailing over prejudice. Medical evidence can and should play a critical role in cases of HIV non-disclosure, exposure and transmission, something both defence lawyers and medical experts in HIV will need to be very mindful of.

Mainstream media news reports can be found here and here. The full judgement is below.

R. v. J.T.C. 2013 NSPC 105 (November 8 2013)

Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will consider reviewing application of law

Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö previously convicted of exposing four women to HIV on the grounds that since he had a stable undetectable viral load on antiretrovirall treatment with no other STIs he could not cause danger to another person.

He had previously been sentenced to a year in prison and and fined 150,000 kronor (€17,000) by the lower court, but was released last week pending the appeal after the Court consulted experts from the Swedish Institute for Communicable Disease Control (SMI).

A press release from the Swedish Courts notes the following (unofficial translation)

The Court of Appeal, for its assessment of the probability of transmission by sexual intercourse, had access to information other than that which existed at the district court. The Court of Appeal has obtained an expert opinion from the Swedish Institute for Infectious Disease Control (SMI) regarding the risk of transmission of HIV through unprotected sexual intercourse. Furthermore, Professor Jan Albert of the Karolinska Institute, was consulted as an expert.

For expert opinion and data Jan Albert has said it can be clearly concluded that the risk of transmission of HIV in vaginal intercourse without a condom is very low, provided that the HIV-infected party is on stable HIV treatment. For an HIV-positive patient to be considered to be on stable HIV treatment, as is apparent from the opinion, it requires that the patient has a consistently high adherence to their medication, that at least two consecutive viral measurements with 3-6 month intervals show that patient’s virus levels in the blood were below the lowest detectable levels in routine testing, and the patient does not carry any other sexually transmitted infection .

The Court of Appeal noted in its judgment that the investigation did not show anything other than the accused was on stable HIV treatment during the time that the charges related to, and based on what the SMI and Jan Albert have said about risk of infection, assessing the likelihood that sexual intercourse to which the charges relate means that the risk of HIV transmission was so small that no real danger could be presupposed. Since this does not meet the required elements of the crime of creating danger to another, the indictment was dismissed.

Major policy shift

The ruling reflects a major shift in policy announced last week by the National Board of Health and Welfare (Socialstyrelsen).

In a press release entitled, ‘Effective treatment reduces the risk of infection by HIV’, the agency, which is part of the Swedish Ministry of Health and Social Affairs, clarified the treating physician and the individual’s responsibility under the Communicable Diseases Act – which creates a ‘disclosure obligation’ for anyone with an infectious disease.

The criteria to not be legally bound to disclose are very similar to those set out in January 2008 by the Swiss Federal AIDS Commission’s ‘Swiss statement’. They are, as follows:

For treatment of HIV infection to be considered well-functioning, patients must be highly adherent to antiretroviral treatment. Virus levels in the blood should be tested regularly, verified by two measurements between three to six months apart and the result should be virus levels below 50 copies per milliliter.

Follow-up tests should be performed two to four times a year. No other ongoing sexually transmitted disease should be suspected, as this could increase the risk of infection. When these criteria are met, the SMI estimates that infectivity is minimized in a person infected with HIV similar to wearing a condom during sexual intercourse.

HIV infection is one of the dangerous diseases included under the Communicable Diseases Act. The law states that the attending physician has the responsibility to advise people with dangerous diseases of appropriate conduct. It also says that if the person knows, or has reason to suspect, that he or she is carrying a contagious disease that person is obliged to protect others from infection.

The attending physician, when he or she takes a position on the conduct that the individual should have, should consider that a person with HIV infection who is on well functioning treatment is not required to inform their sexual partners about their infection…

People who have HIV infection, however, must act on their own initiative if there is a significant risk, for example if he or she also gets another sexually transmitted infection. This is true no matter what advice the person has previously received by their treating physician. A significant risk includes situations when someone risks coming into contact with his or her body fluids, for example during blood tests, at the dentists, or during sex with a risk of bleeding.

Coaltion of HIV experts

The National Board of Health and Welfare was itself influenced by a coalition of HIV experts. An editorial by Johan Carlson (Director of SMI), Anders Tegnell (State epidemiologist, SMI), Jan Albert (Professor of Communicable Diseases, Karolinska Institute and Senior Physician at Karolinska University Hospital) and

Anders Sönnerborg (Professor of Clinical Virology,Karolinska Institut and Senior Physician at Karolinska University Hospital) entitled ‘HIV is no longer a life-threatening disease’, also published last week, heralded this new (for Sweden) paradigm.

Today, 21 October, SMI publishes along with Reference Group for Antiviral Therapy (RAV) a report summarising the state of knowledge with regard to the significant reduction in infectivity in treated HIV infection.

SMI and RAV estimates that the infectivity of a patient living with HIV and who have been stabilized on treatment is very low by sexual contact and minimal if a condom is used in vaginal and anal intercourse. This applies provided that there is no other sexually transmitted infections that can affect the risk of HIV transmission. It is therefore important to always use a condom, especially to protect against other sexually transmitted infections, but also to minimize any residual infectious risk for HIV.

This knowledge provides two important conclusions. Firstly, we improve the chances of early diagnosis and initiate treatment as early as possible…

The second conclusion is that current knowledge about HIV will have to influence society’s attitudes to and treatment of people living with HIV. Knowledge about HIV, how the virus is transmitted and what it means to live with HIV, need to be improved in the whole society. Especially within the health care and disease control work, but it is equally important in other areas of society, such as education and social services, the media and the judiciary.

Minister for Social Affairs will consider reviewing application of law

Göran Hägglund, Sweden’s Minister for Social Affairs reacted to the report by telling Sweden’s public broadcaster, SVT, that he will consider reviewing the application of law as it relates to HIV non-disclosure, exposure and transmission.

“If you have an illness that has the potential to infect, it is reasonable to disclose,” he said. “I just think that one would like to know in this situation. But the application of law is another question. Where it is possible to discuss how the law looks and applied, it may be time to consider a change.”

This policy shift is a major victory for the advocates who have been working tirelessly to change Sweden’s draconian attitude towards people living with HIV, notably the partnership of RFSU (the Swedish Association for Sexuality Education), HIV-Sweden and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) who have been lobbying and campaigning to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.

Hägglund also reacted to a recently-published editorial by Marielle Nakunzi, a lawyer at RFSU, which argued that the justice system has such an outdated view of HIV that it still lives in the 1980s.

“It is a matter of making sure that we always have laws that are in tune with the state of knowledge available,” he told SVT. “Therefore, we should always consider the knowledge we have. It’s about educating the justice system.”

Experts agree: overly broad HIV criminalisation is doing more harm than good

The HIV Justice Network has today released a new documentary, More HARM Than GOOD: How overly broad HIV criminalisation is hurting public health which had its world premiere at the US Conference on AIDS in New Orleans on September 10th. We hope it will be useful for both education and advocacy. To watch the video and to see all the studies cited in the documentary, visit www.hivjustice.net/moreharm. Download the video from our Vimeo channel: www.vimeo.com/hivjustice/moreharm

In many countries around the world, people with HIV are being made criminally liable for HIV prevention.

Despite strong recommendations against this overly broad use of the criminal law by UNAIDS and the Global Commission on HIV and the Law, the latest report from the Global Network of People Living with HIV and the HIV Justice Network highlights that new laws continue to be proposed and enacted, and more prosecutions are taking place than ever before.

The most commonly cited rationale of the criminal law is to deter morally unacceptable behaviour through fear of punishment. Scott Burris and Zita Lazzarini were the first to explore whether US laws that criminalised HIV non-disclosure had the impact that the lawmakers intended.

Zita Lazzarini: We found that whether you lived in a state with a law or without a law had absolutely no effect.

Scott Burris: Criminal law is generally a very blunt tool, anyway. And if you think about it, punishment and fear rarely brings out the best in people, when they’re making individual behaviour decisions. And certainly, when it comes to sex, criminal law has a very limited record of getting people to change their behaviour.

Carol Galletly has added much to the body of evidence on the impact of laws that criminalise HIV non-disclosure. Working with a number of colleagues, she published a number of studies, including this one in 2006 and this one in 2012 examining whether or not these laws are having the impact they were intended to have.

Carol Galletly: We thought of every single way these laws could possibly be effective. Do HIV-positive individuals reduce number of sex partners? Do they choose only positive sex partners more than people who don’t know about the law? Are they abstinent more? Do they practice safer sex more? Do they engage in oral sex or less risky activities? So we looked at all these things and the data just stacked up – there were no significant differences. The strongest predictor of disclosure was actually comfort with disclosure. So what I concluded was, if you really want people to disclose, then what you should probably do is increase their comfort, do interventions, do whatever. And don’t do laws that could jeopardize people disclosing.

Most laws and prosecutions focus on disclosure – in other words, whether or not the person with diagnosed HIV told their sexual partner before having sex. Whilst this may be the right thing to do, does this actually benefit HIV prevention? Eric Mykhalovskiy organised an international meeting on HIV prevention and criminal law in Toronto in April 2013 precisely because his own research found that criminalising HIV non-disclosure was having the opposite effect of what was intended.

Eric Mykhalovskiy: We see how significant now disclosure, or questions around disclosure, are within HIV prevention counselling, to the point that there is too much of a focus. You know, Barry Adam and others have emphasised repeatedly that disclosure is not an effective HIV prevention mechanism. And yet what seems to have happened is that the criminalisation of HIV non-disclosure has placed disclosure at the centre of people’s concerns around HIV prevention. And that is, I think, a serious challenge for people who are enlisted with the responsibility of trying to ensure that HIV transmission is lessened.

Barry Adam is Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network and lead author of How criminalization is affecting people living with HIV in Ontario.

Barry Adam: Disclosure has become a bit of a red herring I think, in terms of HIV prevention because HIV prevention can and has for a long time happened without disclosure, anyways. To require disclosure doesn’t necessarily help. Sometimes, it could even hinder the process by creating a false sense of security among those who think that, if disclosure doesn’t happen, that their partner is negative. The social science evidence shows that, when people often get into the disclosure area, it’s in order to give themselves permission to have unprotected sex! People actually do have to know what their HIV status is in order to disclose it. And, there is a good deal of science these days that suggests that, it’s people who don’t know, who are newly infected, who are actually doing a lot of the infection.

Studies by Eric Mykhalovskiy, Chris Sanders and Martin French (the latter two are currently undertaking research studies and have not yet published their findings) have uncovered an unanticipated negative impact of HIV criminalisation on the healthcare workers who test and treat people with HIV, complicating their practice as public health professionals. They found that the criminal law is creating a chill, closing down discussions about HIV on both sides. (An in-depth report on the impact of HIV criminalisation on nursing practice can be found here.)

Chris Sanders: Criminalisation has complicated post-test counseling. Nurses are finding that clients shut down, they become very unwilling to speak openly about their sexual behaviour and they don’t want to share contact information because they’re worried that it might come back if they’re later charged with non-disclosure. And so, it makes nurses’ work more difficult. And that can impact HIV prevention as public health relies on contact tracing to be able to do quite a bit of their prevention work.

Martin French: I’m looking at this in Canada and the United States, and in spite of the fact that there are different approaches to public health I’m seeing some similar effects in terms of the anxiety that a number of providers are feeling about the issue of criminalisation as they counsel patients with respect to disclosure.

Trevor Hoppe found another, more sinister impact on healthcare workers. During his PhD research he discovered that some heath officials in Michigan’s public health system appeared to be invested in prosecuting people with HIV for not disclosing their status, resulting in some potentially problematic outcomes for HIV prevention.

Trevor Hoppe: This is the first piece of evidence that some health departments may be playing a role in facilitating criminal prosecutions. I can understand why people living in some of these communities would think twice before talking to health officials about their lives openly and honestly, given what health officials reported to me.

One of the most worrying aspects of HIV criminalisation is the additional disincentive it plays in a person’s willingness to take an HIV test: a significant number of new infections come from people who are undiagnosed. But testing is not just about knowing one’s HIV status to modify behaviour, it’s also the gateway to accessing HIV treatment and care.

New guidelines from the World Health Organization now highlight that HIV treatment works not only to keep people alive and well for a lifetime, but also prevents new infections by reducing HIV to undetectable levels. Where there is no virus, there can be no transmission. Since treatment is also prevention, then not testing or accessing treatment, hurts not only the individual but also the communities in which they live, harming the broader public health.

Laurel Sprague is the Research Director of the Sero Project, and oversaw their 2012 national HIV criminalisation survey.

Laurel Sprague: We asked people whether they thought it was not reasonable, somewhat reasonable or very reasonable to avoid getting an HIV test, or to avoid accessing treatment if someone tested positive because of HIV criminalisation. Those numbers should be zero. We shouldn’t have legal reasons for people not to get tested. We shouldn’t have a legal reason for people not to access care. And half of our respondents said that it was reasonable to avoid HIV testing because of HIV criminalisation and 42% of our respondents said it was reasonable, somewhat, or very reasonable to avoid getting HIV care once you’ve tested positive.

Patrick O’ Byrne is lead author of the 2013 review article, HIV criminal prosecutions and public health: an examination of the empirical research. He has also studied the impact of HIV prosecutions on gay men and documented how fear of HIV criminalisation has impacted their sexual and testing practices.

$Patrick O\'Byrne$

Patrick O’Byrne: Nobody – guys who were negative, guys who were positive – could make a distinction between the public health department and the police. It was a single institution. And this is problematic, right? How can you provide health care services when people think that you are a police agency? How do you provide care when people won’t access it? The laws have effectively rendered your HIV prevention health professionals useless.

Richard Elliott is the Executive Director of the Canadian HIV/AIDS Legal Network, and was an intervenor when the Supreme Court of Canada heard HIV criminalisation cases in 1998 and 2012.

Richard Elliott: How can it not have an impact on people and their decision as to whether or not to find out their HIV status, if you risk becoming a criminal. It may not at the end of the day dissuade a large number of people, but I think, it does dissuade a significant number of people and it probably, based on the evidence we have, dissuades some of those who are most likely to actually benefit from learning their HIV status, and all of the potential benefits to them, and others that may flow from that. So, why would we want to create an additional barrier, and why would we want to create a barrier to people actually seeking help from the helping professions? Because if we conscript those helping professions, to basically, become agents of law enforcement, that undermines their ability to help people, and that actually undermines the health of all of us.

Criminalisation is a divisive issue with strong opinions often informed by morality and a desire to achieve justice by punishing perceived wrongdoing. However, understanding the impact of HIV criminalisation on public health is critical to making informed policy decisions.

The 2013 UNAIDS guidance note, Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations aims to ensure that any application of criminal law in the context of HIV achieves justice and does not jeopardise public health objectives.

The guidance can be downloaded here.

Feature: Why overly broad HIV criminalisation is doing more harm than good

More HARM Than GOOD

Image 1 of 10

In many countries around the world, people with HIV are being made criminally liable for HIV prevention.

Zita Lazzarini: We found that whether you lived in a state with a law or without a law had absolutely no effect.

Scott Burris: Criminal law is generally a very blunt tool, anyway. And if you think about it, punishment and fear rarely brings out the best in people, when they’re making individual behaviour decisions. And certainly, when it comes to sex, criminal law has a very limited record of getting people to change their behaviour.

Carol Galletly: We thought of every single way these laws could possibly be effective. Do HIV-positive individuals reduce number of sex partners? Do they choose only positive sex partners more than people who don’t know about the law? Are they abstinent more? Do they practice safer sex more? Do they engage in oral sex or less risky activities? So we looked at all these things and the data just stacked up – there were no significant differences. The strongest predictor of disclosure was actually comfort with disclosure. So what I concluded was, if you really want people to disclose, then what you should probably do is increase their comfort, do interventions, do whatever. And don’t do laws that could jeopardize people disclosing.

Most laws and prosecutions focus on disclosure – in other words, whether or not the person with diagnosed HIV told their sexual partner before having sex. Whilst this may be the right thing to do, does this actually benefit HIV prevention? Eric Mykhalovskiy organised the workshop precisely because his own research found that criminalising non-disclosure was having the opposite effect of what was intended.

Eric Mykhalovskiy: We see how significant now disclosure, or questions around disclosure, are within HIV prevention counselling, to the point that there is too much of a focus. You know, Barry Adam and others have emphasised repeatedly that disclosure is not an effective HIV prevention mechanism. And yet what seems to have happened is that the criminalisation of HIV non-disclosure has placed disclosure at the centre of people’s concerns around HIV prevention. And that is, I think, a serious challenge for people who are enlisted with the responsibility of trying to ensure that HIV transmission is lessened.

Barry Adam is Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network and lead author of How criminalization is affecting people living with HIV in Ontario.

Barry Adam: Disclosure has become a bit of a red herring I think, in terms of HIV prevention because HIV prevention can and has for a long time happened without disclosure, anyways. To require disclosure doesn’t necessarily help. Sometimes, it could even hinder the process by creating a false sense of security among those who think that, if disclosure doesn’t happen, that their partner is negative. The social science evidence shows that, when people often get into the disclosure area, it’s in order to give themselves permission to have unprotected sex! People actually do have to know what their HIV status is in order to disclose it. And, there is a good deal of science these days that suggests that, it’s people who don’t know, who are newly infected, who are actually doing a lot of the infection.

Chris Sanders: Criminalisation has complicated post-test counseling. Nurses are finding that clients shut down, they become very unwilling to speak openly about their sexual behaviour and they don’t want to share contact information because they’re worried that it might come back if they’re later charged with non-disclosure. And so, it makes nurses’ work more difficult. And that can impact HIV prevention as public health relies on contact tracing to be able to do quite a bit of their prevention work.

Martin French: I’m looking at this in Canada and the United States, and in spite of the fact that there are different approaches to public health I’m seeing some similar effects in terms of the anxiety that a number of providers are feeling about the issue of criminalisation as they counsel patients with respect to disclosure.

Trevor Hoppe: This is the first piece of evidence that some health departments may be playing a role in facilitating criminal prosecutions. I can understand why people living in some of these communities would think twice before talking to health officials about their lives openly and honestly, given what health officials reported to me.

Laurel Sprague is the Research Director of the Sero Project, and oversaw their 2012 national HIV criminalisation survey.

Laurel Sprague: We asked people whether they thought it was not reasonable, somewhat reasonable or very reasonable to avoid getting an HIV test, or to avoid accessing treatment if someone tested positive because of HIV criminalisation. Those numbers should be zero. We shouldn’t have legal reasons for people not to get tested. We shouldn’t have a legal reason for people not to access care. And half of our respondents said that it was reasonable to avoid HIV testing because of HIV criminalisation and 42% of our respondents said it was reasonable, somewhat, or very reasonable to avoid getting HIV care once you’ve tested positive.

$Patrick O\'Byrne$

Patrick O’Byrne: Nobody – guys who were negative, guys who were positive – could make a distinction between the public health department and the police. It was a single institution. And this is problematic, right? How can you provide health care services when people think that you are a police agency? How do you provide care when people won’t access it? The laws have effectively rendered your HIV prevention health professionals useless.

Richard Elliott is the Executive Director of the Canadian HIV/AIDS Legal Network, and was an intervenor when the Supreme Court of Canada heard HIV criminalisation cases in 1998 and 2012.

Richard Elliott: How can it not have an impact on people and their decision as to whether or not to find out their HIV status, if you risk becoming a criminal. It may not at the end of the day dissuade a large number of people, but I think, it does dissuade a significant number of people and it probably, based on the evidence we have, dissuades some of those who are most likely to actually benefit from learning their HIV status, and all of the potential benefits to them, and others that may flow from that. So, why would we want to create an additional barrier, and why would we want to create a barrier to people actually seeking help from the helping professions? Because if we conscript those helping professions, to basically, become agents of law enforcement, that undermines their ability to help people, and that actually undermines the health of all of us.

The guidance can be downloaded here.

The HIV Justice Network has produced an accompanying video, ‘More HARM Than GOOD’ that we hope will be useful for both education and advocacy. Watch and/or download the video on our Vimeo channel: www.vimeo.com/hivjustice/moreharm

Canada: Woman found not guilty of aggravated sexual assault for HIV non-disclosure before oral sex

A court in Barrie, Ontario has found a woman, ‘JM’ not guilty of aggravated sexual assault for not disclosing her HIV status before her male partner performed oral sex on her.

The Barrie Advance reports that

Justice Gregory Mulligan… ruled [‘JM’] was not guilty of the same charge when a man performed oral sex on her in a public park, stating the chances of a man contracting the disease in that manner were so “miniscule” she wasn’t required to inform him.

“This is considered a low risk. There are no documented cases of HIV being transmitted in this way,” Mulligan said. “It is so low that it does not give rise to a risk of bodily harm.”

In his ruling, Mulligan relied on evidence from Dr. Irving Salit of the Toronto HIV Clinic who said the chances of a man contracting the disease by performing oral sex on a woman with a low viral load were the same “as having a piano fall on you while walking down the street”.

Dr. Salit also testified that it was nearly as unlikely for a man to get the disease if he had unprotected intercourse with a woman in [‘JM’]’s symptom-free condition. As well, clinical trials show using a condom to protect against HIV is of little benefit when a person has a low viral load.

It was the oral sex incident that led to [‘JM’] being arrested and having police put out a public notice looking for other men who may have had unprotected sex with her.

A group of HIV organizations, including the Canadian HIV/AIDS Legal Network and the International Community of Women with HIV/AIDS, issued a press release (available in full below) welcoming the verdict.

“She should never have had to fight the oral sex charge,” said Jessica Whitbread, Global Chair of the International Community of Women with HIV/AIDS. “We deplore the Crown’s insistence on prosecuting this charge despite what the science tells us about the risk of transmission in cases of oral sex.”

“Today’s decision sends an important message to Crown prosecutors who have tried to expand the scope of the criminal law on HIV non-disclosure: criminal prosecutions for oral sex are not warranted,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network.

However, ‘JM’ was nevertheless convicted of one count of aggravated sexual assault for not disclosing her HIV status before having unprotected vaginal sex, although at the time her viral load was undetectable (meaning the risk of transmission was close to zero).

As the press release chillingly reminds us, “she now faces potential jail time on charges similar to those faced by violent rapists.” Her sentencing is next week.

According to the Barrie Advance

Defence lawyer Angela McLeod expects “a battle” during the hearing because she has been told the Crown’s office is seeking a “multiple-year” penitentiary term, which could mean up to five years. “That’s outrageous,” McLeod said outside the court. “The men who going out trolling for prostitutes and not wearing condoms should be the ones going to jail.”

McLeod said she was somewhat perplexed by a finding of guilt because Justice Mulligan dismissed the oral sex charge based on scientific evidence but gave little weight to the same science for the intercourse charge. “I don’t understand it because he relied on the science for one charge but not the other,” McLeod said.

‘JM’ is only one of a handful of people in Canada who have been charged for HIV non-disclosure more than once. According to this 2012 article in The Toronto Star, in 2005, she was convicted of failing to disclose her HIV status to two soldiers from CFB Borden before they engaged in unprotected intercourse. She was sentenced to one year of house arrest. In 2007, she was charged again with aggravated sexual assault, accused of having unprotected sex with a man in Barrie, Ontario and not disclosing, although the charge was ultimately withdrawn by the Crown.

The case highlights the urgent need for prosecutorial guidelines in Canada. More than 1,000 supporters of the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) have already called on the Ministry of the Attorney General of Ontario to consult with the HIV community as well as experts in HIV medicine and science when they put together their long-awaited prosecutorial guidelines later this year.

“We continue to press the Ministry to fulfill its promise and develop prosecutorial guidelines in accordance with science, international recommendations and the expertise of people living with HIV and their allies to put an end to unjust and harmful prosecutions against people living with HIV,” concludes Elliott.

Woman found not guilty on oral sex count, court sends important message to prosecutors

US Public Health Service updates occupational PEP guidance

Healthcare workers exposed to HIV at work should immediately begin four weeks of post-exposure prophylaxis with three antiretroviral drugs, according to new recommendations. The three-drug guideline is a change from the 2005 recommendations of the U.S.

US: House Appropriations Committee passes amendment that would fund review of HIV-specific criminal laws

The United States is closer than ever before in ensuring that their HIV-specific laws are reviewed and amended in order to be consistent with current medical and scientific knowledge.

Earlier this week, the U.S. House Appropriations Committee passed an amendment proposed by Congresswoman Barbara Lee to the FY2014 Commerce-Justice-Science Appropriations Act that would require the Attorney General to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV.

This wording is very similar to the content of Lee’s REPEAL HIV Discrimination Act, which was re-introduced in May with bi-partisan support, and which currently has 32 co-sponsors.

“HIV criminalization laws breed, discrimination, distrust, and hatred. These laws are based on fear, not science. This is an important first step in ensuring that our laws reflect current scientific understandings of HIV.” notes Congresswoman Lee in a press release. This amendment passed on a voice vote as part of the manager’s amendment.

The amendment reads as follows:

Modernizing laws with respect to people living with HIV/AIDS.

The Committee is aware of the position of the President’s Advisory Council on AIDS (PACHA) that current criminal laws require modernization, should be consistent with current medical and scientific knowledge and avoid imposition of unwarranted punishment based on health and disability status. The Committee directs the Attorney General, within 90 days following enactment of this Act, to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV/AIDS. The Committee further directs the Attorney General, no later than 180 days from initiating the review, to make best practice recommendations to ensure such policies do not place unique or additional burdens on individuals living with HIV/AIDS and reflect contemporary understanding of HIV transmission routes and associated benefits of treatment.

The Appropriations Act (officially titled ‘S.1329 : An original bill making appropriations for Departments of Commerce and Justice, and Science, and Related Agencies for the fiscal year ending September 30, 2014, and for other purposes’) has now been placed on Senate Legislative Calendar.

The Sero Project has issued a press release welcoming the amendment and explaining what it means for advocacy against overly-broad HIV-specific criminal laws in the United States.

SERO. Appropriations Amendment Release