Defining risk from a legal perspective

Edwin J. Bernard
Published: 18 July 2010

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The central problem of criminalization is to draw reasonable, enforceable lines between criminal and non-criminal behavior...The severity of the risk and the harm are also more complicated than law makers, judges, lawyers and juries often seem willing to concede. Risk of transmission varies...and in many circumstances may be low. Where effective treatment is available, the risk is reduced both because individual infectiousness is significantly less...and because the harm caused by infection is palliated by medical care. But the objective risk, to the extent it can be accurately determined in any given situation, is hardly determinative in policy making, in court, or in human behavior. Risk assessments are more heavily influenced by psychological and social biases than objective statistics. The riskiness (and therefore blameworthiness) of sexual behavior depends on the observer's perceptions of the value and importance of sex, the responsibilities and capacities of sex partners for self-protection, and the applicable norms of sexual behavior and disclosure.

Professor Scott Burris, Justice Edwin Cameron and Michaela Clayton LLB, 2008.1

Criminal statutes are often written and criminal cases are often decided without full consideration of the latest relevant scientific research.

HIV-specific criminal laws

The majority of HIV-specific laws criminalise behaviour that could not create a significant risk of HIV transmission based on current scientific evidence. They often do this by specifying low-risk behaviours and/or by writing statutes so vague that they do not differentiate betweeen high-, low- and no-risk behaviours and/or do not take into account factors that reduce risk.

Also see the chapter: Laws for a discussion of how vague and broad HIV-specific criminal statutes recently enacted in many parts of sub-Saharan Africa appear to criminalise behaviour that poses little or no risk.

For example, in the United States, Louisiana's HIV-specific criminal law, first enacted in 1987 and revised in 1993, specifies that it is "unlawful for any person to intentionally expose another to HIV through sexual contact or through any means or contact (including spitting, biting, stabbing with an HIV contaminated object, or throwing of blood or other bodily substances) without the knowing and lawful consent of the victim."2 The maximum prison sentence is ten years. A 1993 appeal3 found that the statute was neither too vague nor too broad and it has not been challenged since.

There have been at least 14 arrests and 6 convictions under this law (see GNP+'s Global Criminalisation Scan). Since 2008, several people have been arrested for behaviour that carries a very low risk of HIV transmission, including a husband for having oral sex with his wife;4 a male sex worker for suggesting to an undercover policeman, but not actually having, unprotected sex;5 and an injured man receiving medical attention for throwing a "blood-covered identification card into the face" of, and "trying to spit" on, a healthcare worker.6 The outcome of all of these cases is unknown.

In 2007, the Inter-Parliamentary Union, the United Nations Development Programme and UNAIDS published Taking Action Against HIV: A Handbook for Parliamentarians.7 It recommends the following:

Only conduct that carries a significant risk of HIV transmission may legitimately be criminalized. Extending the criminal law to actions that pose no significant risk of transmission would:

  • trivialize the use of criminal sanctions;

  • impose harsh penalties disproportionate to any possible offence;

  • undermine HIV prevention efforts by perpetuating the misperception that the conduct in question must carry a significant risk of transmission because it has been targeted for criminal prosecution.

UNAIDS has further stipulated that since any single act of HIV exposure carries a low transmission risk, “the law must be clear about the degree of risk of HIV transmission that will be captured by the criminal law.8 ”To achieve this, “[s]ound data regarding the risk levels of various activities should guide the determination of what is considered a ‘significant’ risk of HIV transmission for the purposes of criminal liability. The principle of restraint in the use of coercive measures suggests that the criminal law be most appropriately used with regard to those acts that truly carry the highest risk of transmitting HIV, rather than those that carry a low or negligible risk.”8 UNAIDS also strongly suggests that exposure to HIV without a resulting infection is not harmful enough to warrant criminal penalties.9

Case law rulings

Although general laws that can be applied to HIV exposure or transmission vary greatly between jurisdictions, many require that a certain threshold of risk-taking be proven beyond a reasonable doubt. In some jurisdictions, there must be a ‘significant’ risk of harm, i.e., HIV infection (or death) is likely to result from the alleged act(s). In other jurisdictions, the person on trial must have taken an ‘unreasonable’ risk – one that the average person would not have taken.

However, even when this information is taken into account, laws and courts worldwide have expressed very different perspectives regarding what constitutes a ‘significant’ or ‘unreasonable’ risk of HIV exposure or transmission. Of note, most rulings on sexual risk have come from Canadian courts, and even in this single jurisdiction there is a great deal of disparity.

Two criminal courts, one in New Zealand and one in Canada, heard similar testimony in trials of men who had not disclosed their HIV-positive status and had used condoms for vaginal sex. The New Zealand judge ruled that an HIV-positive man in such a scenario was not in breach of his legal duty to take ‘reasonable’ precautions and care to avoid endangering human life.10 The Canadian judge ruled that an HIV-positive man in the same scenario could only be considered not guilty of aggravated sexual assault if he both used a condom and had an undetectable viral load.11 The latter ruling is currently being appealed.

Different perspectives on oral sex and HIV risk have been expressed in Canadian courts. In a 2001 case in Nova Scotia, the prosecution acknowledged that unprotected oral sex is conduct that carries only a low risk of HIV transmission and would not be the basis for a prosecution.12 In 2008, a Canadian jury found a man guilty of aggravated sexual assault for having unprotected oral sex with one woman (as well as vaginal sex with a condom with another woman) without disclosing his HIV-positive status.13

A 2010 ruling from British Columbia, Canada found that the risk of insertive anal intercourse without a condom between two men – when the receptive partner was not on antiretroviral therapy – was not ‘significant’ enough to warrant criminal liability under Canadian law.14 The judge accepted testimony from an expert witness that the risk of anal sex for the insertive partner was similar to that of insertive vaginal sex – 0.04% or 4 in 10,000. She ruled that unprotected sex took place three times, and that the cumulative risk – 12 in 10,000 – did not reach "the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault."

Case study: Canada – When 'significant risk' is no longer 'significant'.

Hepatitis C virus (HCV) is an infectious disease that ultimately results in liver cirrhosis or cancer in a substantial number of infected individuals. The majority of infections are blood borne, but sexual transmission is known to occur. It is estimated that a small percentage of all HCV infections have occurred by sexual transmission. In R. v. Jones,15 a trial judge accepted expert medical evidence that the per-act risk of HCV infection from unprotected sex was less than 1% (1 in 100) for vaginal sex and from 1 to 2.5% (1 in 40 to 1 in 100) for anal sex.  Although these estimates are higher than similar estimates for the per-act risk of HIV transmission, the judge found that the risk was "so low that it cannot be described as significant. Therefore, the positive duty to disclose does not arise.” The trial judge also noted that the prosecution’s medical expert testified that he does not advise his patients to disclose their condition because of the stigmatisation associated with the disease.

Making good use of the latest scientific evidence on risk

In 2005, the Supreme Court of the Netherlands took into account the viral load in the defendant's blood, the nature of the sexual contact, the lack of other sexually transmitted infections, and the number of sexual contacts the defendant had with the complainant. The court took into account the defendant’s initiation of antiretroviral treatment and gave much weight to expert medical evidence that successful antiretroviral therapy leads to a decline in viral load. It found that the defendant was not 'infectious enough' to cause the 'considerable chance' that he could infect the complainant during unprotected sex. This reversed lower court rulings and rendered the defendant innocent of manslaughter and attempted aggravated assault.16

In 2009, the Geneva Court of Justice quashed a lower court's conviction of a man on HIV-exposure charges following testimony from one of the authors of the Swiss statement, Professor Bernard Hirschel, on the risks of HIV transmission when taking successful antiretroviral treatment.17 Significantly, it was Geneva’s deputy public prosecutor, Yves Bertossa, who had called for the appeal. Bertossa told Swiss newspaper, Le Temps: "On ne condamne pas les gens pour des risques hypothétiques" ("One shouldn't convict people for hypothetical risks").18

References

  1. Burris S et al. The criminalization of HIV: time for an unambiguous rejection of the use of the criminal law to regulate the sexual behavior of those with and at risk of HIV. SSRN, 2008
  2. West Louisiana Revised Statutes Annotated § 14:43.5 , 1998
  3. State of Louisiana v. Salvadore Andrew Gamberella Nos 93 KA 0829, 93 KA 0830 Court of Appeal of Louisiana. First Circuit 633 So 2d 595, 29 December 1993
  4. The Times-Picayune Husband held on rape, HIV charges. www.nola.com, 12 February 2008
  5. Daily Comet Houma man accused of attempted HIV exposure. dailycomet.com, 21 June 2009
  6. Fox News Louisiana Man Arrested After Allegedly Trying to Expose Hospital Staff to AIDS Virus. www.foxnews.com, 29 December 2009
  7. The Inter-Parliamentary Union, UNDP, UNAIDS Taking action against HIV: a handbook for parliamentarians. Geneva, 2007
  8. UNAIDS/UNDP International Consultation on the Criminalization of HIV Transmission: Summary of main issues and conclusions. Geneva, 2008
  9. UNAIDS/UNDP Policy brief: criminalization of HIV transmission. Available online at: http://data.unaids.org/pub/%20BaseDocument/2008/20080731_jc1513_policy_%20criminalization_en.pdf, 2008
  10. New Zealand Police v Dalley District Court of Wellington, Court File No. CRI-2004-085-009168. 4 October, 2005
  11. R v Mabior Court of Queen's Bench of Manitoba, MBQB 201 15 July, 2008
  12. Nova Scotia Supreme Court R v. Edwards NSSC 80, 2001
  13. Ka Hon Chu S and Elliott R Man convicted of first-degree murder sets disturbing precedent. HIV/AIDS Policy Law Review 14 (2): 42-3, 2009
  14. Bernard EJ Canada: gay man acquitted of HIV exposure in Vancouver, risk not significant enough for liability. www.criminalhivtransmission.blogspot.com, 7 May 2010
  15. Court of Queen's Bench of New Brunswick R v. Jones. NBQB 340, 2002
  16. van Kouwen W and Bruinenberg K Supreme Court of the Netherlands, Criminal Division (Hoge Raad der Nederlanden, Strafkamer) HIV Transmission: Criminalisation. Judgment of 25 March 2003, Case No: LJN AE 9049, Judgment of 18 January 2005, Case No: LJN AR 1860. Journal of Criminal Law (UK) 70 (6): 485-489, December 2006
  17. Geneva Court of Justice S v. S and R. Reported in http://www.aidslex.org/site_documents/CR-0066E.pdf, accessed 12 August 2010, 2009
  18. Bernard EJ Swiss court accepts that criminal HIV exposure is only 'hypothetical' on successful treatment, quashes conviction. aidsmap.com. Available online at: www.aidsmap.com/page/1433648/, 25 February 2009
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This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.