In a disappointing decision, the Supreme Court of Canada has wound back the rights of people with HIV significantly, finding that sex without disclosure is a criminal act except where the accused both has low viral load and condoms are used.
The judgments in two cases – R v. Mabior and R v. DC (the links go to the full judgment in each case, courtesy of the HIV Justice Network) – were handed down in Ottawa overnight, and have been widely condemned by HIV activists in Canada and around the world.
Many news reports have failed to grasp the significance of the ruling, focusing on the fact that the Court found that there are cases where disclosure is not required, rather than on the narrowness of the circumstances in which that is the case.
Mr Mabior was charged with nine counts of aggravated sexual assault relating to his failure to disclose his HIV status to nine women before he had sex with them. None of the women contracted HIV. At trial, Mabior was convicted on six of the nine charges, and acquitted on the remaining three. The Court of Appeal reduced the number of convictions to two, and the Crown appealed that decision to the Supreme Court, which has now restored three of the four convictions, meaning Mr Mabior will be sentenced for five counts.
The timeline of the case shows the Canadian courts trying to make sense of the principle that there should be disclosure where there is a significant risk of transmission:
- The trial judge found that disclosure was required except where condoms were used;
- The Court of Appeal found that either condoms or undetectable viral load were sufficient;
- The Supreme Court found that both condoms and low viral load are required.
This is a significant backward step for people with HIV in Canada, who the Court seems to think of as criminals-in-waiting. The justices seem to have been incapable of grasping the idea of a reasonable level of risk. As Edwin Bernard points out, “the risk of HIV transmission with a high viral load and no condoms via insertive vaginal sex is estimated by the CDC to be just 5 per 10,000 exposures (i.e. 1-in-2000).” That risk is reduced by either condom use (80% reduction of risk according to the widely accepted Cochrane condom study) or undetectable viral load (96% according to the HPTN 052 study). So the Court believes that a 1-in-10,000 risk of transmission (vaginal sex with a condom) or a 1-in-50,000 risk (vaginal sex with undetectable viral load) represent a “realistic possibility of HIV transmission” and the bar has now been raised to a 1-in-250,000 risk (vaginal sex with undetectable viral load and a condom).
As well as potentially criminalising many thousands of HIV-positive Canadians for simply keeping their HIV status private while engaging in consensual, low-risk sex with no transmission of HIV, this case will discourage many people from testing for HIV: why test for HIV when the law treats you as a potential criminal if you test positive? That will lead to increased HIV transmissions, as we know the majority of new infections come from people who do not know their HIV status and are consequently not on treatment (high viral load) and less likely to use condoms.
This response from Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, neatly summarises the devastating impact of this decision:
We are dismayed and shocked by the Supreme Court’s decision. It is a step backward for public health and for human rights. The Court purports to maintain the current standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But given today’s judgment, this is an illusory limit to the criminal law. The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000.
Such an approach gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV. In practice, the Court’s ruling means that people risk being criminally prosecuted even in cases where they took precautions such as using condoms – which are 100% effective when used properly. This decision will not only lead to continued injustice but undermines public health efforts. It creates another disincentive to getting an HIV test and creates a further chill on what people can disclose to health professionals and support workers.
People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads.
Criminal prosecutions for HIV exposure and transmission have been rising worldwide, including here in Australia, and it is an ongoing challenge for HIV advocates to bring the law in line with reality, balancing the need to protect individuals with the human rights of people with HIV. The issues are complex but unfortunately, courts around the world have shown themselves to be needlessly conservative and often wilfully ignore scientific evidence, placing virtually all of the onus for HIV prevention on people with HIV and often, as is the case in Canada, criminalising behaviour which has no risk of HIV transmission whatsoever, in a real-world sense.
(Note: The numbers in the paragraph starting “This is a significant backward step…” are rough calculations made by me based on the results of several different studies and are meant to be illustrative of the levels of risk the Court has been dealing with, rather than scientifically valid statements of risk.)