D.C. v. R. – HIV Criminalization Headed to the Supreme Court

June 2011 marked the thirtieth anniversary of the first reported cases of HIV/AIDS in the United States, and U.S. Secretary of State Hillary Rodham Clinton commemorated the sombre occasion by recalling the disease’s history.
In her remarks on June 5, Clinton noted that in the early days of the HIV/AIDS epidemic, “the world was shocked by how fast the epidemic spread as we struggled to find a solution.” However, Clinton’s words also made note of the work that has been done to slow HIV’s toll:.

With the remarkable work of researchers over the past decades, we have made incredible gains in the prevention and treatment of HIV. The United States and the international community stood up and took on this terrible scourge. Thanks to these efforts, millions of lives have been saved and millions more have been transformed.

As researchers in the medical community have struggled to find solutions, policymakers and legislators have also struggled to deliver a measured response to the disease.
The Supreme Court of Canada’s decision in R. v. Cuerrier, [1998] 2 S.C.R. 371, tried to find a solution to a very difficult and real problem: what is to be done when a person fails to disclose their HIV-positive status and has unprotected sex?

In Cuerrier, the Court concluded that this behavior constituted aggravated assault, since the failure to disclose and use appropriate contraceptives would create a “significant risk of serious bodily harm to the complainant” and effectively vitiate sexual consent.
Although (well-intentioned, the Cuerrier precedent has started to show its age. Last year, the Manitoba Court of Appeal courted controversy in R. v. Mabior, remarking on the uncertainties in the Cuerrier test. Noting the medical breakthroughs that had been made in the treatment of HIV/AIDS, the Manitoba appellate court concluded that it might be time for the highest court to revisit the issue.

D.C. v. R., 2010 QCCA 2289, a recent decision out of the Quebec Court of Appeal, poses similar questions about Cuerrier. On August 25, 2011, the Supreme Court granted leave to appeal in D.C., holding that it would be heard with Mabior. As the issue of HIV criminalization heads back to the Court, TheCourt.ca decided to take a look at the issues raised by the Quebec Court of Appeal in D.C.

Facts & Procedural History

The appellant and complainant met innocuously enough on the soccer fields where their sons played. During the summer of 2000, their relationship evolved to the level of intimacy.

At this point in the narrative the stories diverge, with the appellant and complainant presenting differing versions of their relationship. The complainant states that they had unprotected intercourse on several occasions prior to the appellant’s disclosure of her HIV positive status. Conversely, the appellant asserts that they had sexual intercourse only once prior to disclosure, and that a condom was used.

After the appellant disclosed her status, the relationship continued for four more years, during which time they lived together and practiced safe sex. Characterized as “tumultuous,” their relationship ended when the appellant asked the complainant to leave the home and was refused. During a heated encounter, the complainant assaulted the appellant and her son, a charge for which he was convicted. 

On February 11, 2005, the complainant filed a complaint against the appellant for the events that took place over the course of the summer of 2000. The appellant was charged with aggravated assault and sexual assault.

The trial judge concluded neither party was credible but went on to conclude that the pair had unprotected sexual intercourse during the period in question. This finding was based primarily on evidence provided by the appellant’s doctor, which included a shorthand note in the appellant’s medical file that read: “sex c new partner condom broke – connsl to disclo”. The judge accepted that the note was true to what the appellant had told the doctor, but concluded that she had lied. He then inferred from this lie that the appellant had unprotected sexual intercourse with the new partner.

In application of the law with respect to sexual assault and aggravated assault, including Cuerrier and Williams, the judge concluded that there was an absence of genuine consent by the complainant at the time of their first sexual encounter. Within the framework of Cuerrier, the trial judge considered the appellant’s HIV status to be an “important and relevant” factor, essential for the consent to be valid. Further, he espoused the view that HIV positive persons have two fundamental responsibilities: 1) to inform their partner of their condition, and 2) to ensure that sexual intercourse presents the least amount of risk possible.
Regarding the charge of aggravated assault, the judge again applied the framework laid out in Cuerrier.  Upon review of the facts on the transmission of the virus and in light of the seriousness of the disease and unprotected nature of their first sexual encounter, the trial judge concluded that the appellant had exposed the complainant to a significant risk of bodily harm. Thus, she was convicted of both charges.

He Said, She Said: Common Issues in HIV Criminalization Cases

In the jurisprudence surrounding HIV criminalization, this case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.
Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

Viral Loads: Considering Mabior

While HIV remains a very serious disease, massive steps have been made in its treatment, which have significant impacts on its proliferation. The development of Highly Active Retroviral Therapy (HAART) enables the reduction of viral loads to the point that they cannot be measured in blood, a situation referred to as an undetectable viral load. With an undetectable viral load, the risk of transmission is drastically reduced. When condoms are used, the risk of transmission is further reduced. Without being zero, the risk is “very, very low”, “remote” and “no greater than the risks associated with driving a car”. Undetectable viral loads were present in both D.C. and Mabior. This striking change in the virulence of the disease highlights the need for the “significant risk of serious bodily harm” test to be revisited.

In Mabior, Steel J.A. noted that “the test set out in Cuerrier is a compromise and involves a certain degree of uncertainty, especially since the results of its application will vary over time depending on medical advances.” She notes that what constitutes “significant risk” varies with the magnitude of the harm and as such, each case must be assessed in light of its own circumstances.

Similarly, in D.C., Chamberland J.A. dismisses the argument that any risk of transmission is “significant” due to the seriousness of the disease. The court pointed out that accepting this position would distort the test. He echoes Madam Justice Steel in noting that the test in Cuerrier was conceived in the early stages of the fight against HIV, a time when the mitigating impacts of condom use and reduced viral loads may not have been well understood or even contemplated.

The inherent uncertainty in the present day application of the test lends credence to the cries for further elucidation of the standard for determining a “serious risk of serious bodily harm”. Where the line ought to be drawn, if at all, remains contentious as it necessarily draws strongly held ethical and moral beliefs into a largely scientific debate.

Looking Forward

Declaring that a failure to disclose one’s positive serostatus is a criminal act is ostensibly meant to encourage persons living with HIV to disclose their status prior to engaging in sexual acts as a means of controlling the spread of the virus. While it should be everyone’s right to give their informed pre-coital consent, the fact of the matter is that HIV/AIDS is notably different from other STIs.

The word “stigma” does not convey the enormity of the discrimination faced by the HIV positive community. In many of these cases, a malicious intent to infect others is absent. Rather, the failure to disclose may stem from the harsh and overwhelmingly negative reactions of prospective sexual partners. No other disease carries with it the court-sanctioned notion that one’s bodily fluids are tantamount to a biohazard.

By criminalizing non-disclosure, we’re not addressing the problem effectively. Instead, we’re magnifying the stigma associated with the disease. This provides further impetus to keep quiet about one’s status to avoid facing the wrath of the public fear of this disease.

The means used to compel people to disclose affirms the very biases that make people reluctant to disclose in the first place. Worse still, the criminalization of non-disclosure provides a strong incentive not to be tested, which only serves to perpetuate the spread of the virus.

While there certainly exist situations in which criminal sanctions would be justified, the issue of non-disclosure is by and large a public health problem. These individuals demand a more nuanced approach that fully reflects the realities of each specific case. 
As Mabior and D.C. head together to the Supreme Court in the coming months, the Ontario Attorney General is seeking intervener status to remove the “significant risk” element in the Cuerrier test. These appellants would obviously argue that their viral loads at the time of the sexual encounters were low enough to no longer pose a “significant risk.” The attorney general would have the court rule, however, that the proper solution to this debate over the “significant risk” threshold is to have no threshold at all.

Removing the significant risk element of the test would more or less render it meaningless, and would essentially convict HIV positive persons for simply failing to disclose their status, and not for actually posing a significant risk of harm.
Not only would the removal of a “significant risk” make it far easier to prosecute cases of non-disclosure, it would exacerbate the aforementioned problems associated with criminalization itself.  Although this may seem far-fetched, there have been charges laid for exposure to herpes. If the significant risk standard is done away with, it would be one less bar to the “policing” of what is really a public health issue.
When the Supreme Court revisits this issue, I am hopeful that they will address the uncertainty and unfairness associated with the current test, but also question whether the criminalization of non-disclosure is truly an effective step towards controlling the spread of HIV.

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