[Viva] FW: Legal Network Statement: Vancouver HIV Case highlights the need for clear guidelines on criminal prosecutions

Wed May 12 09:35:35 PDT 2010

From: Lindsey Amèrica-Simms [mailto:lsimms at aidslaw.ca] 
Sent: Tuesday, May 11, 2010 10:09 AM
To: mckee_law at msn.com
Subject: Legal Network Statement: Vancouver HIV Case highlights the need for
clear guidelines on criminal prosecutions

Statement

Énoncé

For immediate release

Également disponible en français

  VANCOUVER HIV CASE HIGHLIGHTS AGAIN THE NEED FOR CLEAR GUIDELINES ON
CRIMINAL PROSECUTIONS

TORONTO, May 11, 2010 — In a ruling released last Friday, May 7th, a trial
judge in British Columbia found that a gay man living with HIV had had
unprotected anal sex with his then-partner without disclosing his HIV status
on three occasions, but acquitted him on the charge of aggravated sexual
assault.  Based on the evidence before her, the judge concluded that the
sexual encounters did not represent a “significant risk of serious bodily
harm.”  This is the legal threshold set out by the Supreme Court of Canada
for triggering a duty to disclose known HIV-positive status.

This judgment reinforces the basic point that not every risk of transmission
will be considered “significant”, and illustrates the importance of ensuring
that courts consider carefully the scientific evidence before them in
determining when there is a “significant risk” of harm, rather than simply
criminalizing non-disclosure in all circumstances.  While critical of the
accused’s conduct, describing it as unethical, the judge observed: “But not
every unethical or reprehensible act engages the heavy hand of the law.”

In this particular case, the accused HIV-positive partner was exclusively
the receptive partner during anal sex, and the prosecution’s medical expert
estimated the risk of transmission per act as 0.04 percent (for a cumulative
risk of 0.12 percent over the three occasions).  In addition, the judge
found that HIV infection is now a chronic, manageable condition; this was
relevant in her view because, as the severity of the possible harm
decreases, the higher the risk of harm must be in order to warrant criminal
prosecution.

The judgment is unusual; in numerous other cases, people living with HIV
have previously been convicted for unprotected vaginal or anal sex without
disclosing their status.  It would be unwise to assume that, because of this
single ruling by a B.C. trial court, there is no need to disclose known HIV
status when having unprotected sex.

However, the case illustrates again the need for greater clarity in the law.
Ever since the Supreme Court of Canada ruled in 1998 in the Cuerrier case
that there is a duty to disclose HIV-positive status before engaging in
activity that poses a “significant risk” of transmission, there has been
uncertainty about what this includes.  There has been an inconsistent, and
hence unfair, application of criminal charges aimed at defining this
standard.  For example, in some cases, prosecutors and courts have agreed
that unprotected oral sex, or vaginal or anal sex while using a condom, does
not carry a significant enough risk to trigger criminal charges for not
disclosing — yet we know of other cases in which people have been charged
and/or convicted for these very same activities, and now this Vancouver case
is an acquittal for unprotected anal sex.

Provincial Attorneys-General should work with community AIDS organizations
to develop clear guidelines for prosecutors and police that would recognize
when criminal charges are not warranted.  Those guidelines should be
informed by the evidence about actual risks of transmission.  They should
also consider the damage that misusing the criminal law does to individual
lives, and how it undermines public health, including HIV prevention
efforts, through contributing to misinformation, fear and stigma.

The Legal Network worked closely with defence counsel in this case and
provided expert testimony at trial.  

More information about the court decision can be found in the following
sources:

“HIV-positive gay man acquitted”, Xtra! (May 7, 2010)

http://www.xtra.ca/public/Vancouver/HIVpositive_gay_man_acquitted-8632.aspx

http://www.xtra.ca/blog/national/

“HIV-positive man acquitted for having sex with unprotected gay partner,”
The Province (May 8, 2010)

http://www.theprovince.com/news/positive+acquitted+having+with+unprotected+p
artner/2999879/story.html

About the Canadian HIV/AIDS Legal Network

The Canadian HIV/AIDS Legal Network (www.aidslaw.ca <http://www.aidslaw.ca/>
) promotes the human rights of people living with and vulnerable to
HIV/AIDS, in Canada and internationally, through research, legal and policy
analysis, education, and community mobilization. The Legal Network is
Canada’s leading advocacy organization working on the legal and human rights
issues raised by HIV/AIDS.

Contact:

For more information:

Gilles Marchildon

Director of Communications

Canadian HIV/AIDS Legal Network

Telephone: +1 416 595-1666 ext. 228

Cell: +1 647 248-2400

E-mail: gmarchildon at aidslaw.ca

“Criminal Law and HIV”

A series of 5 info sheets on-line at: www.aidslaw.ca/criminallaw

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