The Criminalization of HIV Non-Disclosure: A Small Step Forward, Miles to go - Lisa Hayden

A recent news report announced a bittersweet development in the criminal law surrounding Human Immunodeficiency Virus (HIV) non-disclosure in Canada.[1] Jennifer Murphy, a former Ontarian, had been convicted of aggravated sexual assault in 2013 for not disclosing her HIV-positive status to her sexual partner, despite the fact that she was taking antiretroviral medication and had an undetectable viral load at the time. For this offence, Murphy was sentenced to over three years in prison and her name was added to the national sex offender registry for life. Thankfully, in August 2022, the Ontario Court of Appeal admitted fresh expert evidence indicating that Murphy’s undetectable viral load meant her risk of HIV transmission had been “effectively zero.”[2] This showed that Murphy’s relations did not meet the legal threshold of having a “realistic possibility” of transmitting HIV, even though a condom had not been used.[3] Although Murphy was acquitted, the Court stopped short of creating a broader standard to reify that there is no realistic possibility of HIV transmission when a person is receiving antiretroviral therapy (ART) and has a low viral load, as the Court felt that the “dynamic environment of a trial court”[4] would be more appropriate for addressing this impactful issue.

The Court’s decision has been praised as a “significant milestone in the fight against HIV criminalization.”[5] I agree that R v Murphy (Murphy) is a step in the right direction in that the Court is acknowledging the modern science of HIV transmission. However, in this blog, I will argue that the Court’s decision does not go nearly far enough in clarifying and improving the criminal law regarding HIV non-disclosure. I will not delve into the issue raised in Murphy of whether an appeal or a trial court is the better context in which to modify the relevant legal test. Rather, my goal is to illustrate why significant reform of the criminal law governance of HIV non-disclosure is needed: because the current law harms public health by 1) pressuring patients to disclose their HIV status in all intimate relations, 2) discouraging HIV testing and treatment, and 3) exacerbating existing stigma against marginalized communities. HIV Non-Disclosure in the Supreme Court: Setting the Stage for a Perceived Obligation to Always Disclose To understand why substantial reform of Canada’s criminalization of HIV non-disclosure is needed, it is first helpful to situate Murphy in its judicial history. Canada does not have criminal laws specific to HIV; instead, a series of Supreme Court of Canada cases have established the use of existing criminal offences to prosecute people living with HIV for non-disclosure. In 1998, R v Cuerrier determined that a person’s HIV-positive status must be disclosed prior to any sexual activity that poses a “significant risk of serious bodily harm.”[6] Failure to disclose could be considered fraud that vitiates the HIV-negative partner’s consent to sex under s 265(3)(c) of the Criminal Code – even if the partner consented at the time of the sexual activity – and amount to an offence of aggravated sexual assault.[7] Unfortunately, the Court did not clearly define what circumstances would constitute a “significant risk” of “serious bodily harm.” The decision in R v Mabior attempted to refine this legal test by stating that disclosure is only required where there is a “realistic possibility that HIV will be transmitted.”[8] Again, however, the Court did not provide clear guidelines for determining when such conditions existed, apart from noting that disclosure is not required in the presence of two criteria: a low viral load resulting from treatment and condom protection at the time of the sexual relations.[9] Today, Canadian courts continue to interpret the meaning of the “realistic possibility of transmission” test on a case-by-case basis. This has led to a patchwork application of the law in which some lower courts have found, similar to Murphy, that a person is not liable for non-disclosure if they did not use a condom but had a viral load below a certain threshold, [10] whereas other courts have upheld convictions for aggravated sexual assault due to the non-use of a condom and did not even consider the defendant’s viral load.[11] The vagueness in the law, and the resulting inconsistency in its judicial interpretation, have impacted how people with HIV approach the most private aspects of their lives. A qualitative study from Ontario found that healthcare providers, in response to uncertainty about when people are legally obligated to disclose their HIV status, have tried to protect their patients by counselling them to disclose before all sexual activities, including those with no scientifically known risk of transmission.[12] This finding was reinforced by interviews with patients who reported always disclosing their HIV status to avoid criminal liability, while others reported withdrawing from sex altogether.[13] These outcomes show that the law is placing an unfair pressure on people with HIV to disclose their status to all partners, even when, from a safety perspective, it is medically and ethically unnecessary to do so. This indicates an uncoupling of the obligation to disclose from the risk of transmission[14] that undermines the original purpose of HIV criminal law, which is to protect public health by decreasing the spread of HIV through unsafe sexual practices. Instead, the law – whether it intends to or not – is making a negative moral comment about any and all sexual activities engaged in by people with HIV, turning even harmless intimate acts into a potential source of shame within a population already facing high levels of stigma.[15] In short, the lack of clarity and consistency in the criminal law response to HIV is creating an excessive moral obligation to disclose that ultimately harms people with HIV, rather than protecting the public. Legal Incentivization to Avoid Testing In addition to adding a layer of moral guilt to safe sexual practices, the current application of HIV criminal law also harms public health by discouraging diagnostic testing and treatment, which are critical to lowering the community transmission of HIV. A person cannot be criminally charged for non-disclosure if they were unaware of their HIV-positive status or their risk of transmitting HIV to others at the time of their sexual relations.[16] In court, evidence that a defendant has received medical counselling for HIV can demonstrate their awareness of their risk.[17] Seeking HIV testing from a healthcare provider therefore carries the threat of legal consequences by potentially making patients liable for non-disclosure to future sexual partners. Public health nurses have even shared concerns that patients will not approach them about HIV for fear that they will report their patients directly to the police.[18] The incentive to avoid testing is particularly concerning because people with undiagnosed HIV account for a disproportionate number of transmission events.[19] For example, a 2007 study in Quebec found that early HIV infections, which occur less than 6 months after detectable HIV antibodies have formed and are often undiagnosed, were responsible for 49% of HIV transmissions in an urban setting.[20] While there is a lack of Canada-wide data for transmissions in undiagnosed people,[21] a report by the Centers for Disease Control and Prevention found that 80% of new HIV infections in the United States are transmitted by people who are unaware they have HIV or are not receiving treatment.[22] As it stands, Canadian criminal law may actually be increasing HIV transmission by discouraging testing and treatment in an essential group: the one in ten HIV-positive Canadians who are currently undiagnosed.[23] Effects on Marginalized Populations Another way in which the criminal justice system’s response to HIV has harmed public health is through its impact on marginalized groups. Men who have sex with men (MSM) have consistently been a main community affected by HIV, and accounted for the largest number of reported cases in Canadian adults in 2016.[24] HIV also disproportionately affects Black and Indigenous Canadians, who make up over 20% of newly reported cases while comprising less than 5% of the national population.[25] These communities are subject to economic and/or social barriers, such as discrimination, that make them less likely to have access to trustworthy, unbiased, and adequate medical care,[26]including medications that could maintain their viral load at non-transmissible levels. People with HIV also have an increased risk of experiencing intimate partner violence,[27] and many HIV-positive women report feeling unsafe about disclosing their status to partners for fear of a violent reaction.[28] As a result, the HIV criminal law disproportionately punishes vulnerable populations who may be more likely to meet the “realistic possibility of transmission test” to begin with, due to reasons beyond their control. The highly punitive nature of HIV criminal law further adds to the stigma and discrimination faced by these groups. Most HIV-nondisclosure cases have involved charges of aggravated assault or aggravated sexual assault,[29] as in Murphy. These are considered severe offences and carry heavy penalties. Aggravated sexual assault, in particular, bears a maximum penalty of life in prison – the “same sentence as for someone convicted of murder.”[30] These penalties seem highly disproportionate to the offence of non-disclosure, especially in light of the challenging circumstances faced by marginalized groups and the fact that Canadian courts have convicted people with a non-significant risk of transmission.[31] These severe penalties, in turn, encourage the publication of sensational news stories that paint people with HIV as dangerous sexual offenders.[32] In both the legal and public arenas, criminal law contributes to the image of people with HIV as criminals guilty of the most serious offences. Ultimately, this discourages people with HIV from seeking testing and treatment and makes it harder for them to disclose their HIV-positive status to their partners.[33] Looking Ahead: A Public Health Approach to HIV Non-Disclosure The Canadian criminal justice system has responded to HIV non-disclosure in a way that is contradictory to the point of criminalization in the first place. Rather than promoting public health, the law burdens people with HIV to always disclose their status, discourages the testing and treatment needed to curb HIV transmission, and increases stigma against communities with long histories of discrimination, which further impedes their ability to disclose and safely manage their condition. This raises the question of whether the criminal justice system is the appropriate arena in which to manage HIV. I agree with Jody Wilson-Raybould, former Minister of Justice and Attorney General of Canada, that “HIV is first and foremost a public health issue.”[34] Moving forward, I believe that HIV should therefore be handled as much as possible from a public health perspective, similarly to how Canada responds to other sexually transmitted infections.[35] The decision in Murphy represents a step in the right direction. The Ontario Court of Appeal recognized the modern science of HIV, and Jennifer Murphy, at least, was acquitted and received some measure of justice and clarity. The question remains: what about the other 63,000 Canadians living with HIV?[36]

[1] Katelyn Wilson, “Former Barrie, Ont. Woman's Conviction for HIV Non-Disclosure Overturned: Ex-Barrie Woman Wins HIV Non-Disclosure Appeal”, CTV News (30 August 2022), online: <barrie.ctvnews.ca/former-barrie-ont-woman-s-conviction-for-hiv-non-disclosure-overturned-1.6049096>. [2] R v Murphy, 2022 ONCA 615 at para 5. [3] Ibid at para 26. [4] Ibid at para 34. [5] Wilson, supra note 1. [6] R v Cuerrier, [1998] 2 SCR 371, [1999] 4 WWR 1 at para 128. [7] Criminal Code, RSC 1985, c C-46, s 265(3)(c). [8] R v Mabior, 2012 SCC 47 at para 4. [9] Ibid. [10] R v CB, 2017 ONCJ 545 at para 10. [11] R v Felix, 2013 ONCA 415 at para 48; R v Schenkels, 2017 MBCA 62. [12] Eric Mykhalovskiy, “The Problem of ‘Significant Risk’: Exploring the Public Health Impact of Criminalizing HIV Non-Disclosure” (2011) 73:5 Soc Science & Medicine 668 at 673. [13] Ibid at 670. [14] Ibid at 673-674. [15] Davinder Singh & Karen Busby, “Criminalizing HIV Non-Disclosure: Using Public Health to Inform Criminal Law” (2019) 42:3 Man LJ 1 at 9. [16] Department of Justice Canada, “Criminal Justice System’s Response to Non-Disclosure of HIV” (last modified 8 January 2018), online: Canada.ca <justice.gc.ca/eng/rp-pr/other-autre/hivnd-vihnd/p4.html>. [17] Ibid. [18] Mykhalovskiy, supra note 12 at 672. [19] Singh & Busby, supra note 15 at 10. [20] Bluma G Brenner et al, “High Rates of Forward Transmission Events After Acute/Early HIV-1 Infection” (2007) 195:7 J Infectious Diseases 951 at 957. [21] Department of Justice Canada, “Criminal Justice System’s Response to Non-Disclosure of HIV” (1 December 2017) at 5, online (pdf): <s3.amazonaws.com/tld-documents.llnassets.com/0007000/7167/hivdoc.pdf>. [22] Centers for Disease Control and Prevention, “Status of HIV in the U.S.” (last modified 2 February 2021), online: CDC 24/7 <cdc.gov/hiv/policies/strategic-priorities/mobilizing/status-of-hiv.html>. [23] Public Health Agency of Canada, “Government of Canada is Making HIV Testing More Accessible Across Canada” (1 August 2022), online: Canada.ca <canada.ca/en/public-health/news/2022/08/government-of-canada-is-making-hiv-testing-more-accessible-across-canada.html>. [24] AC Bourgeois et al, “HIV in Canada – Surveillance Report, 2016” (2016) 43:12 Can Communicable Disease Report 248 at 251. [25] Ibid at 254. [26] Reggie Casanova-Perez et al, “Broken Down by Bias: Healthcare Biases Experienced by BIPOC and LGBTQ+ Patients” (2021) 2021 American Medical Informatics Assoc Symposium Proceedings 275 at 281-282. [27] Ontario HIV Treatment Network, “Research Backgrounder: Interventions to Reduce Intimate Partner Violence Among Populations at Risk of HIV” (2015) at 1, online (pdf): Community-Based Research Centre <ohtn.on.ca/wp-content/uploads/sites/9/2016/02/IPV-Backgrounder.pdf>. [28] “Indigenous Communities and HIV: Resilience, Strength and Solidarity” (21 June 2017), online: HIV Legal Network <aidslaw.ca/site/indigenous-communities-and-hiv-resilience-strength-and-solidarity/?lang1⁄4en>; Sally Zierler et al, “Violence Victimization After HIV Infection in a US Probability Sample of Adult Patients in Primary Care” (2000) 90:2 American J Public Health 208 at 208. [29] HIV 2018, supra note 16. [30] Singh & Busby, supra note 15 at 5. [31] Heather Wright, “Jennifer Murphy Guilty After Not Disclosing HIV Status to Sexual Partners: Judge”, CTV News (16 August 2013), online: <barrie.ctvnews.ca/jennifer-murphy-guilty-after-not-disclosing-hiv-status-to-sexual-partners-judge-1.1414016>. [32] Mykhalovskiy, supra note 12 at 672. [33] HIV 2017, supra note 21 at 17. [34] Office of the Director of Public Prosecutions, “Canada Gazette Part I” (2018) at 4322, online (pdf): <gazette.gc.ca/rp-pr/p1/2018/2018-12-08/pdf/g1-15249.pdf>. [35] Singh & Busby, supra note 15 at 9. [36] Public Health Agency of Canada, supra note 23.

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.