Criminal Justice System's Response to Non-Disclosure of HIV

Part G: Criminal Justice System Responses To HIV Non-Disclosure Cases

This Part provides an overview of criminal justice responses in HIV non-disclosure cases,Footnote 144 including information received from law enforcement partners in various jurisdictions on: the nature of HIV-related criminal cases that have come to the attention of law enforcement; charging and prosecutorial practices and considerations; and, the experience of victims.

The provinces are responsible for investigating and prosecuting Criminal Code offences in their respective jurisdictions, while the federal government does so in the territories. Police are responsible for laying charges in every province except for British Columbia, New Brunswick and Québec, where charging is subject to pre-approval by the Crown. Generally, in each jurisdiction, charges are laid where there are reasonable and probable grounds to believe an offence has been committed and prosecutions are pursued where there is a realistic prospect of conviction and doing so is in the public interest, although these thresholds vary slightly by jurisdiction.

1. Nature of HIV-Related Criminal Cases

The majority of HIV-related cases involve HIV non-disclosure

While some law enforcement partners have handled a few HIV-related cases involving non-sexual conduct (e.g., spitting, biting, needle stabs, blood donations), the majority of HIV-related cases that have come to the attention of law enforcement involve non-disclosure of HIV status. However, some law enforcement partners have also reported cases involving forced sexual activity with HIV exposure and/or transmission as an aggravating factor for sentencing purposes.

Law enforcement partners noted that HIV non-disclosure cases often involve members of the opposite sex and vaginal intercourse though other types of sexual activity (e.g., anal sex and oral sex) were also at issue in many instances. Many also indicated that cases have concerned members of the same sex and various forms of sexual activity (e.g., anal sex, vaginal penetration, i.e., with a shared sex toy, and oral sex).

HIV non-disclosure cases often involve multiple complainants

Most law enforcement partners noted that HIV non-disclosure cases have involved multiple complainants and, as a result, multiple allegations against the accused. Such cases may involve complainants who contract HIV, as well as those who are exposed to HIV.

Complainants typically report to police

Most law enforcement partners indicated that HIV non-disclosure cases typically come to the attention of law enforcement because the complainant makes a report to police. Some indicated that the complainant usually does so after learning that they are HIV positive or finding out from the accused or another person that the accused was HIV positive when they engaged in sexual activity. In some instances, complainants have come forward as a result of information in a media release.

2. Charging Practices and Considerations

Involvement of public health authorities prior to law enforcement involvement is common

Most law enforcement partners indicated that, in many cases, public health authorities had been involved with the accused prior to the case coming to the attention of law enforcement. In some cases, the accused had been counselled to disclose their HIV positive status to sexual partners and, in a few cases, the accused was under a public health order.

Law enforcement does not generally consult public health authorities pre-charge

Consultation with public health authorities at the pre-charge stage is limited. Although a few law enforcement partners noted that public health authorities may be asked to provide information related to the accused’s knowledge of their HIV status and any counselling they may have received, as well as to assist in the production of any medical records relevant to determining whether a charge should be laid, some also indicated that public health authorities have no involvement or influence at the pre-charge stage.

Pre-charge Crown consultation is not standard practice

In most PTs that do not have Crown pre-charge approval, it is not normal practice for law enforcement to contact prosecutors prior to the laying of charges. However, a few law enforcement partners noted that prosecutors with experience handling HIV-related cases are available for consultation with police or other prosecutors on an informal, case-by-case basis.

Aggravated sexual assault is the offence usually charged but other offences may apply

The majority of law enforcement partners indicated that aggravated sexual assault is the charge typically laid in HIV non-disclosure cases. According to some, other charges could be considered depending on the facts of the case and available evidence, including: assault; aggravated assault; sexual assault; sexual assault causing bodily harm; criminal negligence; administering a noxious substance; and, public nuisance.

A few law enforcement partners noted that cases involving young offenders or a guilty plea could impact on the type of charge laid or offence for which a conviction is entered. For example, one explained that, in one case involving three victims and a marginalized young offender with a low viral load, the Crown accepted a plea to public nuisance. The young offender received a conditional discharge with one year probation.

Attempted murder/murder charges are rare

While reportedly rare, murder or attempted murder charges may be laid where the accused has a history of engaging in high risk conduct, despite ongoing public health interventions, that results in transmission to others who may die or have died from complications associated with HIV/AIDS.

Non-criminal responses are unavailable in most HIV non-disclosure cases

Some law enforcement partners expressed the view that non-criminal responses were not appropriate or available in HIV non-disclosure cases. Some reasons for not pursuing non-criminal responses included the high level of risk that the accused posed to the public and the severity of the alleged conduct, for example because the accused failed to disclose their HIV positive status to multiple complainants and failed to follow advice from public health authorities. One law enforcement partner noted that alternative measures and treatment programs currently available in that jurisdiction exclude all sexual assault offences. Another noted that non-criminal responses are considered in appropriate cases, depending on the circumstances of the offence and the offender.

Police issue media releases where there are concerns about other potential complainants

In some PTs, media releases are typically issued by police in circumstances where they have reason to believe that other potential complainants, who should seek medical attention, have been or may be at risk of HIV exposure.

3. Prosecutorial Practices and Considerations

Policies and guidelines to assist prosecutors are generally not available

Most law enforcement partners indicated that prosecution services do not have in place formal policies or guidelines specific to addressing HIV non-disclosure cases.

Role of public health authorities is limited post-charge

The role of public health authorities is reported to be either limited or non-existent following a charge. Two law enforcement partners noted that, in some cases, public health authorities may be contacted to discuss appropriate bail conditions, such as requiring the accused to receive counselling by public health on ways to reduce the risk of transmission and to follow terms often found in orders issued by public health (e.g., inform contacts of their HIV positive status).

Informal consultation with experienced prosecutors is common practice

Several law enforcement partners indicated that their practice was to consult with designated prosecutors who have experience handling HIV non-disclosure cases or to assign such cases to experienced prosecutors. One noted that some police and prosecutors are not always aware of the availability of experienced prosecutors until after charges have been laid or the case has concluded.

A range of factors may be considered when determining whether to pursue a prosecution

A few law enforcement partners indicated that the following factors may be considered when determining whether to pursue a prosecution in HIV non-disclosure cases:

  • Risk level posed by the sexual activity at issue (e.g., the accused’s compliance with antiretroviral therapy);
  • Nature and frequency of the risky conduct (e.g., the number of complainants/potential complainants, the accused’s conduct in seeking out sexual partners, such as luring sexual partners on the internet and dating websites, and whether the accused has engaged in a pattern of non-disclosure);
  • Vulnerability of complainants;
  • Accused’s level of knowledge about their HIV positive status (e.g., whether the accused received any information about their diagnosis and made efforts to reduce the risk of transmitting HIV); and,
  • Accused’s prior involvement with public health (e.g., whether the accused received counselling or complied with voluntary and preventative measures, or was subject to a public health order).

Evidentiary issues in HIV non-disclosure cases are complex

Type of relevant medical evidence:
The type of medical evidence sought to be adduced in HIV non-disclosure cases was described as including: records from the accused’s treating physician; public health records (e.g., laboratory test results and counselling records); complainant’s medical records; and, potentially also the records of complainant’s sexual partners in transmission cases. Expert evidence linking the complainant’s HIV infection to that of the accused, or on the risk of transmission posed by the sexual activity in question, may also be adduced.
Purpose of the medical evidence:

Law enforcement partners indicated that medical evidence may be relevant to determining whether to lay charges or to pursue a prosecution. In particular, one noted the importance of medical evidence on the effectiveness of treatment in reducing risk to assess whether there is a realistic possibility of transmission. A few also highlighted the importance of obtaining evidence about the accused’s knowledge of their HIV positive status and any counselling on risk of transmission received by the accused to assist in determining whether the accused had a sufficiently culpable mental state to warrant criminal liability.

Law enforcement partners indicated that expert medical evidence is typically used at trial in transmission cases to establish that the accused transmitted HIV to the victim, since HIV transmission is an aggravating factor for sentencing purposes. It may also be used at trial in exposure cases to show that the realistic possibility of transmission test is met. However, law enforcement partners expressed divergent views on the use and necessity of expert medical evidence. For example, some PTs indicated that expert medical evidence is required in exposure cases to establish a realistic possibility of transmission, while others noted that such evidence is not required in every exposure case (e.g., where unprotected sexual activity is at issue).

One law enforcement partner noted that exposure cases involving evidence of condom use still require expert medical evidence on viral loads to determine whether the realistic possibility of transmission test is met. Another indicated that if oral sex is at issue, expert evidence on the risk of transmission associated with oral sex is needed. One expressed concern about obtaining objective expert evidence because some experts may be unwilling to provide medical evidence on risk of transmission in criminal trials due to their opposition to the use of the criminal law in HIV non-disclosure cases.

Timing of seeking medical evidence:
Some law enforcement partners noted that medical evidence relating to the accused’s HIV status is generally sought at an early stage in the case, such as during the investigative stage or soon after charges are laid. One indicated that medical evidence is sought post-charge. Another noted that prosecutors wait to see whether the accused will voluntarily produce their medical records prior to seeking production of those records. A few expressed the need for obtaining production orders, with one noting that seeking judicial authorization for production of medical records, or securing consent from the accused to release their records, can impact the timing at which the evidence is received.

HIV transmission and exposure cases are treated similarly

The majority of law enforcement partners noted that transmission cases are generally not treated differently from exposure cases apart from the potential need to call different types of evidence, as described above. However, because transmission cases are generally considered to be more serious, they tend to result in longer sentences.

4. Experience of Victims

Victims experience a range of emotional and psychological impacts

Several law enforcement partners noted that victims experience fear, guilt, anger, stress, embarrassment, and anxiety, including when waiting for medical results or for sufficient time to pass to determine whether they have been infected with HIV. Even after receiving negative test results, some victims continued to worry that the results were in fact false negatives. Victim impact statementsFootnote 145 frequently revealed victims’ sense of betrayal resulting in an inability to trust others. This impact was particularly profound when the offender was a friend, or someone with whom the victim had a long-standing relationship. Many victims reported losing faith in their own ability to judge others’ character. Some victims contemplated, and others attempted, suicide and self-harm.

Victims in transmission cases experience more significant harms

Law enforcement partners noted that victims who contract HIV experience even greater impacts on their lives, such as increased stress and stigma associated with being HIV positive, disrupted family and personal lives (e.g., loss of intimacy, the need to disclose their HIV status in certain circumstances, fear of infecting others, isolation, depression), family planning and pregnancy implications, frequent medical appointments, side-effects from medication (e.g., impact on liver and kidneys, tiring more easily, weight gain), costs of medication, compromised health (e.g., complications of pre-existing conditions, insomnia, loss of appetite, nausea) and compromised well-being resulting from living with HIV (e.g., medication may not be fully effective, fear that HIV will progress to AIDS), and loss of employment. Some victims who contracted HIV reported a strong sense of unfairness, hopelessness and doom in their victim impact statements.

Victims experience challenges with criminal justice responses

Some law enforcement partners noted that victims may feel re-victimized by the criminal justice process and blame themselves, or feel judged, for having failed to protect themselves from the risk of contracting HIV. For example, some victims indicated they had the impression of being treated like “liars” with questionable moral values by participants in the criminal justice system. Other victim concerns include the loss of privacy (e.g., as a result of disclosure of their medical records) and hardships associated with testifying at trial, which involves disclosing details of intimate sexual encounters. Victims also reported hardship associated with preparing for hearings that were subsequently re-scheduled, which was experienced as an emotional “roller-coaster” that added to their anxiety.

A few law enforcement partners also noted that victims who have been infected with HIV often fear public disclosure of their HIV positive status, even where a publication ban is ordered, and feel an intense sense of embarrassment, shame and stigma during criminal justice processes. One indicated that some victims have felt that an accused should not be entitled to withhold their HIV positive status in any circumstance, including where sexual activity poses only a low or negligible risk of transmission. Another noted that victims have expressed the view that sentences are too lenient. Victim impact statements reveal that some victims considered the offender’s behaviour to constitute attempted murder and wanted the offender to be punished harshly, while others wanted the offender to know that they did something wrong and learn from their mistakes, but did not want them to be sentenced to a long period of incarceration.

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