If you think that the number of people facing criminal charges for having unprotected sex without disclosing their HIV status is on the rise, you’d be right. Canada is now a world leader in using the criminal law to prosecute people for HIV transmission.
 
What began with charges of aggravated assault and public nuisance have since escalated to a conviction for first degree murder and a spate of attempted murder charges.
 
“Canada was one of the first countries to start laying charges with respect to HIV exposure or transmission,” says Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network. “It was the first Supreme Court in the world that had ever considered the issue.”
 
By 1998, the Supreme Court was mulling over R v Cuerrier — the case of a heterosexual man charged with assault for exposing a partner to HIV.
 
The court’s judgment said that if there’s a significant risk of serious bodily harm, then the HIV-positive person must disclose his or her status to sexual partners. At the time, the case was denounced by Canadian AIDS experts for using too blunt a tool — the courts — to deal with a public health issue.
 
The Cuerrier case resulted in an aggravated assault conviction but, since then, the charges have largely moved up to aggravated sexual assault — a more serious charge that can land a person on a sex offender registry. Aggravated sexual assault charges also paved the way for murder and attempted murder charges being laid across the country.
 
“The legal explanation behind the murder charges in the Aziga case can be found in Section 231 of the Criminal Code,” says Glenn Betteridge, a legal and policy analyst who has done work with the Ontario HIV Treatment Network.
 
“Basically, the section says that [when] somebody commits a crime like aggravated assault or aggravated sexual assault, and the person they are alleged to have assaulted dies, the charges will automatically be elevated to first degree murder,” Betteridge says. “In those circumstances, there is no prosecutorial discretion so, in effect, it wasn’t police or the Crown Prosecutor that charged Mr Aziga with murder. It was by operation of the Criminal Code, through section 231.”
 
The case of Hamilton’s Johnson Aziga is rare, in that two of the complainants have died, but the inevitability of murder charges isn’t so cut-and-dried according to other legal experts.
 
Isabel Grant is a law professor at the University of British Columbia and author of a Dalhousie law journal article on the criminalization of HIV.
 
“That’s not actually correct,” says Grant. “There [are] two steps to any murder conviction. The first step is you have to show that it’s murder. The second step says that, if it’s during an aggravated sexual assault and you’ve committed murder, then it’s first degree murder. You don’t jump straight to section 231 without showing that there’s [been] a murder. And in order to prove murder, you have to show that the accused meant to cause death, which I don’t think is the allegation in Aziga.”
 
Proving murder is a matter of intent — knowing that one’s actions are likely to cause death. In the majority of HIV-related cases, the intent of having unprotected sex isn’t to kill the other person.
 
“The Supreme Court of Canada has said that in order to prove murder, the accused has to have some actual awareness in his mind at the time that what he’s doing is likely to cause death,” Grant says. “I don’t think it was a foregone conclusion that they had to charge Aziga with murder. There have been other cases where complainants have died and murder has not been charged.”
 
“The Supreme Court of Canada has said that unless there’s that actual awareness in the mind of the accused, then it’s not murder,” Grant says. “This was in a couple of Charter cases a number of years ago. [The Supreme Court said] that murder is our most serious crime, so we can’t convict someone of murder unless they have that actual mental awareness, because the stigma and the punishment involved for murder are so serious.”
 
“We’re starting to understand more and more about the likelihood of transmission of HIV, and it’s not as high as I think some people assume that it is,” Grant says. “Particularly if there’s anti-retroviral medications, it’s not immediately obvious that one act of sexual intercourse is likely to cause someone’s death. I think it’s a real stretch to make this murder, not only on policy grounds, but also on the narrow interpretation of Section 231.”
 
All of which is splitting hairs for those who believed back in 1998 that criminal courts were the wrong place to deal with HIV transmission. But until activists can reverse the trend, how can folks keep the courts out of their bedrooms?  
The essential question is which sex acts carry “significant risk” in the new legal sense. Does an undetectable viral load affect the equation? Will using a condom keep you out of court? What about if you don’t know your status?
 
“When Cuerrier was decided in 1998, it was decided around a specific set of facts,” says Symington. “Two women, one man, his situation. Since then, many things have happened and this law has been applied in all kinds of different scenarios, so now there’s quite a bit of legal uncertainty that has yet to be resolved.”
 
In other words, we don’t know what we’re in for in the coming years.
 
The appeal of a recent trial in Winnipeg may begin answering some of those questions. During sentencing in 2008, the trial judge in R v Mabior decided that condom use did not mitigate blame and meted out a punishment of 14 years in prison. That case will almost certainly be appealed to the highest level.
 
“In the [Mabior] case, the trial judge held that it didn’t matter that the accused wore a condom,” Grant says. “It was only where he used a condom and his viral load was undetectable that he couldn’t be convicted. But if he used a condom where he had a detectable viral load, he was convicted.”
 
 “It was kind of a weird decision,” Grant says, but nevertheless feels it is a potentially important issue, even at the trial level, as it deals with both viral load and condom issues.
 
 In the end, Mabior highlights the muddiness of the current test.
 
 “In terms of low-risk sexual activities, where is the line drawn?” Symington asks. “Those weren’t issues in the Cuerrier case. Unprotected vaginal sex was the only thing the Cuerrier case looked at.”
 
 “We really need the legal clarity that would come possibly from guidelines, possibly from an appellate court making a clear ruling on what that +significant risk of serious bodily harm’ test means in all of these different scenarios.”
 
 But given the track record of judges on HIV, it’s hardly the ideal scenario.  
“My worry is that the courts’ fixation on the issue of disclosure presumes that they’re discouraging transmission, but I don’t think that it works out in real life quite the way they think it does,” says Barry Adam.
 
Adam is the senior scientist and director of prevention research with the Ontario HIV Treatment Network. He’s been following the increasing application of criminal law in transmission cases.
 
Adam points to the research on disclosure, which puts people with HIV/AIDS (PWAs) in a double-bind, demanding that they disclose so that they can be rejected. And while some PWAs will happily announce their sero-status, most will use subtle clues to test the waters, which only works in some cases.
 
“People who disclose actually have a poorer record of safe sex than those who don’t,” Adam says. “And [that] makes a certain amount of sense because disclosure is about trying to figure out if you can sero-sort or not, to find out if the other person is the same sero-status that you are. It becomes an invitation for unsafe sex.”
 
“The courts seem to be operating on a kind of 'rational man’ model, that sex is a kind of contract, and that you need informed consent, and so therefore you need full disclosure of information and then people make a rational judgment afterwards to avoid transmission,” Adam says. “But it’s not quite that simple in real life. The courts are pushing a line [that] I think is elevating disclosure as an HIV-prevention method in the public mind above the more usual ones that we’ve had out there like 'use a condom,’ and that might [mean] some worrisome consequences — and not the consequences they thought they were going to have.”
 
Adam is pointing to a simple fact: that many gay men who are HIV positive don’t know it — and they’re the group most likely to transmit the virus to sexual partners. However, case law is developing in such a way that even folks in this group could get dragged before the courts to face criminal charges.
 
“The law says that if you are suspicious, and you deliberately close your mind to the possibility of finding out, that’s considered wilful blindness and we treat you the same way as if you know,” Grant says.
 
“In this context, let’s say I’m not going to get tested for HIV because I really don’t want to know if I have it, because then nobody can charge me for passing it on,” Grant says. “If that suspicion arises in your mind, and you deliberately close your mind to finding out, the law says you’re just as blame worthy.”  
So what is the next step? When these cases reach the Supreme Court, how will they be decided? What are AIDS groups, public health practitioners and civil libertarians doing to influence the outcome? And can Canadians wrest infectious disease control out of the hands of judges entirely and put it back into the hands of scientists and doctors?
 
Find the second half of this two-part series on criminalization creep on Xtra.ca on Sep 9.

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