Criminalizing HIV transmission and exposure in Canada: a public health evaluation.

• Author: Drummond, Sarah L.

Introduction

In April 2009, the Ontario Superior Court found Johnson Aziga guilty of first-degree murder for knowingly transmitting human immunodeficinecy virus ("HIV"). Aziga had unprotected sex with women despite awareness that he had HIV, and did not disclose the illness to his partners. Two of the twelve complainants contracted HIV and later died from related illnesses, leading to the first-degree murder charges. The other complainants either did not contract HIV from Aziga or contracted it but are still alive, which led to charges of, and convictions for, aggravated sexual assault. (1)

Less than a year earlier in October 2008, Clato Lual Mabior was convicted in a Manitoba trial court for aggravated sexual assault, invitation to sexual touching and sexual interference for failing to disclose his HIV status to partners. (2) None of the six complainants contracted HIV. He was sentenced to 14 years in jail. (3) The Court of Appeal heard arguments in February 2010 and has reserved their decision. (4)

These cases have reinvigorated the debate about whether it is appropriate to use the criminal law in cases of HIV exposure and transmission resulting from sexual contact. This paper will evaluate the current legal context in Canada and will then evaluate arguments for and against such criminalization using a public health framework.

Legal Context in Canada

Since 1989, Canadian courts have been willing to impose criminal sanctions on individuals for the transmission of, or exposure to HIV as a result of sexual contact. Charges have ranged from offences like nuisance to sexual assault, aggravated sexual assault and attempted sexual assault. (5) The Supreme Court of Canada first dealt with the issue in R. v. Cuerrier. (6) The Court unanimously held that an individual knowing of his or her HIV-positive status must inform sexual partners of that status and failure to do so can lead to criminal culpability in the form of aggravated assault charges. Numerous cases in Canada have since then affirmed this holding. (7) In fact, Canada has, per capita, "prosecuted more persons with HIV for HIV-related sexual offences than any other country." (8)

The Supreme Court in Cuerrier unanimously held that the failure of the defendant to disclose his status vitiated the consent of the complainants, resulting in sexual assault. The Court found that the lack of disclosure vitiated the complainants' consent, giving rise to a significant risk of serious bodily harm. The majority decision in Cuerrier concluded that sexual assault can be elevated to aggravated sexual assault where, in the commission of sexual assault, the defendant endangers the life of the complainant. The Court found that the risk of contracting HIV significantly endangered the lives of the complainants, justifying the aggravated sexual assault conviction.

The 2005 decision of the Crown in Ontario to charge Aziga with first-degree murder represented a significant divergence from the established principles governing the punishment of individuals who fail to disclose their HIV-positive status to partners. As such, a decade after the decision in Cuerrier, the issue of criminalizing HIV transmission is again up for debate in the public domain, this time with even more stunning consequences for individuals accused of transmitting HIV.

In order to obtain a conviction for murder the Crown must first establish that the accused committed homicide. This requires that the accused directly or indirectly caused the death of a human being. (9) Once this first element has been established, the Crown must establish that the homicide is a culpable one, being any of murder, manslaughter or infanticide. (10)

These three types of culpable homicide are each described further, with the requisite elements of murder being described at section 229 of the Criminal Code. Murder is established where it can be shown that the accused caused the death of the victim meaningfully or meant to cause bodily harm that the accused knew or was likely to know would cause the death of the victim and was reckless as to whether death ensued. Murder can also be established if a culpable homicide, including manslaughter, occurs during the commission of one of a number of enumerated offences, including sexual assault and aggravated sexual assault." Once the Crown establishes murder in one of these two ways, they may demonstrate that the murder was first-degree rather than second-degree, which affects sentencing. First-degree murder can be demonstrated if it is planned and deliberate, or if the murder occurs at the same time as the commission of another offence, including sexual assault or aggravated sexual assault. (12)

Because a jury rendered the decision in Aziga, there is no record of how the judge instructed the jury as to the law: whether the instruction suggested that Aziga's acts were planned and deliberate, or whether the death of the victims occurred during a sexual assault or an aggravated sexual assault. Aziga intends to appeal his conviction and reasons offered by the Ontario Court of Appeal could provide some insight as to the trial judge's direction. The preliminary hearing indicates that the Crown proceeded on the basis of first-degree murder as a result of planning and deliberation but this may have changed. (13)

The Court in Mabior criminalized the accused's conduct through the use of aggravated sexual assault charges. In Mabior, none of the complainants were infected with HIV so the conviction was based on the reasoning in Cuerrier: exposing someone to HIV constitutes the endangerment of his or her life within the meaning of the aggravated assault provision of the Criminal Code. The majority of the Supreme Court in Cuerrier held that no harm need result for an aggravated sexual assault conviction, it is the risk to which the complainant is exposed that constitutes the harm. On this basis, the trial judge in Mabior found the accused guilty because he either had unprotected sexual relations with the complainants when his viral load was undetectable or had protected sexual relations with the complainants when his viral load was detectable. The trial judge exculpated the accused on charges of aggravated assault in the case of the two complainants with whom he had sexual relations with a condom during times when his viral load was undetectable, finding that this did not constitute sufficient risk. (14)

Clearly the Criminal Code provides the means of criminalizing HIV transmission through the use of murder and other charges. The question left to answer is whether it is sound and effective policy to pursue murder convictions, or any criminalization at all. The next section of this paper will evaluate the justifications offered for criminalizing HIV transmission and exposure, and the arguments against such criminalization.

Public Health Framework

A number of authors have come up with frameworks, principles, goals, and analytical tools to evaluate public health efforts and a number of common themes emerge from their work. (15) These common themes will be used to evaluate the arguments for and against criminalization of HIV transmission and exposure. Incorporating the framework by Childress et al., (16) and Singer's analysis of the SARS outbreak, (17) the following factors will be used in the analysis: effectiveness, least infringement, protection of communities from undue stigrnatization, proportionality, necessity and protection of the public from harm. There are a number of compelling arguments supporting the view that criminalizing HIV transmission impedes public health goals and is an inappropriate policy position. (18) The focus of most of the literature on this topic is the denunciation of the routine application of criminal laws in an effort to reduce HIV transmission, reserving a narrow role for the criminal law in exceptional cases.

Undermining Arguments in Favor of Criminalization

Before turning to the arguments against criminalizing HIV exposure and transmission it is helpful to examine why criminalization was introduced in the first place and critically evaluate the common justifications for this policy approach. Criminal law serves many purposes: deterrence, denunciation, rehabilitation, and retribution. (19) Each of these purposes is reflected in the two typical justifications for criminalizing HIV transmission. The first justification for criminalizing HIV exposure and transmission is that it will reduce transmission rates by providing an incentive to infected individuals to change their behavior. The second is that incarceration will isolate an HIV-positive individual from the rest of society, thereby reducing that individual's ability to further spread the virus, thereby reducing transmission. The first justification, that behavioral change will result, is discussed further below where it is shown that HIV-positive individuals are not deterred by the prospect of...