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Canada

Unless otherwise noted, information on Canada is summarised from data provided by the Canadian HIV/AIDS Legal Network and Mykhalovskiy E, Betteridge G et al. The Criminalization of HIV Non-disclosure in Canada: a preliminary analysis of trends and patterns. 2009 OHTN Research Conference, 16-17 November, 2009.

Canada is second only to the United States in terms of absolute numbers of criminal prosecutions for both sexual and non-sexual HIV exposure and transmission. In about 40% of convictions the complainant(s) did not acquire HIV. There have been close to 110 prosecutions under a broad range of existing laws including: common nuisance (maximum prison sentence two years); assault (five years); sexual assault (ten years); assault causing bodily harm (14 years); aggravated assault (14 years); sexual assault causing bodily harm (14 years); aggravated sexual assault (life); attempted murder (life); and murder (life). The conviction rate runs at around 60%, most resulting in prison sentences. These have varied widely from between ‘house arrest’ to 18 years’ imprisonment, although around half of all prison sentences have ranged from between two and five years. In addition, all convicted individuals are ordered to provide a sample for the national criminal DNA databank and their names are placed on the national sex-offender registry.

Prosecutions began sporadically in 1989, but intensified following a 1998 Supreme Court ruling (R v. Cuerrier). The ruling established that anyone who knows they are living with HIV has a duty to disclose their HIV status before engaging in conduct that poses a “significant risk” of exposing another person to the virus. Non-disclosure (regardless of whether it is active deceit or as a result of not discussing of HIV risk) is treated as fraud that invalidates consent to sex and which results in this sexual contact being classified as an assault.1

A second Supreme Court ruling in 2003 (R v. Williams) further established that someone who has not yet been diagnosed, but is aware of the risk that they may be HIV-positive, must disclose that risk to sexual partners. It also established that even if the partner was already HIV-positive, non-disclosure could result in charges of  ‘attempted aggravated assault’.2 The annual number of prosecutions increased substantially following this second ruling to between 8 and 16 per year, although no charges have yet been laid for either of the above scenarios.

Prosecutions have taken place in nine of Canada's ten territories with numbers broadly following HIV prevalence. There have been no cases reported so far in New Brunswick or in Canada's three territories. The vast majority of charges and convictions have been against heterosexual men who allegedly did not disclose their HIV-positive status to women, of whom around one quarter were Black (African or Caribbean). Some ten cases have involved heterosexual women who allegedly did not disclose their HIV-positive status to men, with a further 15 cases involving gay or bisexual men. There have been no cases related to HIV exposure via sharing drug-injecting paraphernalia.

In what may have been the world's first-ever conviction for mother-to-child transmission, in April 2006 a woman was sentenced by a Hamilton, Ontario court to a six-month conditional sentence and three years’ probation.3 She had pleaded guilty to a charge of failing to provide the necessaries of life after additional charges of criminal negligence causing bodily harm and aggravated assault were dropped.4 The woman’s first child, born in 2003, did not acquire HIV. When she became pregnant for the second time, in 2004, she changed her doctor, did not disclose that she was HIV-positive, did not access prevention of mother-to-child transmission services, and insisted on breastfeeding the newborn child. The baby tested HIV-positive in 2005. The Catholic Children's Aid Society was granted wardship of her children. As part of the terms of her probation, she was ordered to attend medical appointments, seek employment and training, and to stay away from her children except as instructed by Children's Aid.5

Notwithstanding a previous homicide conviction in Italy, what may have been world’s first-ever conviction for first-degree murder via sexual HIV transmission also took place in a Hamilton, Ontario courtroom in 2009. Ugandan-born Johnson Aziga was found guilty of two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault for not disclosing his HIV status before having unprotected sex with eleven female complainants, seven of whom subsequently tested HIV-positive, and two of whom subsequently died of AIDS-related cancers. (See Criminal HIV Transmission for details of the Aziga case, and reactions to it.) At least two of the aggravated sexual-assault charges were for unprotected oral sex and vaginal sex with a condom, which 'disturbs' legal commentators.6 Mr Aziga’s sentencing is currently pending psychiatric assessment. Since Mr Aziga’s conviction, advocates have been concerned by the escalation of the severity of criminal charges for not disclosing an HIV-positive status before sex that may risk transmission.7 These have slowly increased from criminal negligence causing bodily harm8,9 to aggravated sexual assault10,11 to attempted murder.12

United States

Unless otherwise noted, information on the United States is summarised from data from: the Global Criminalisation Scan and report; Criminal HIV Transmission; Lambda Legal; and The Center for HIV Law and Policy.

The United States has prosecuted more people living with HIV for sexual and non-sexual exposure or transmission than any other country in the world. A total of 39 states have prosecuted at least 442 HIV-positive individuals (likely to be an underestimation, see below) for criminal HIV exposure or transmission, but only 24 states have HIV-specific criminal laws. (Details of each state’s laws can be found on Lambda Legal’s website at www.lambdalegal.org. See State Criminal Statutes on HIV Exposure.)

In those states without HIV-specific laws (and even in some states with these laws) existing assault or homicide laws have been used to prosecute a wide variety of sexual and non-sexual HIV exposure or transmission. Depending on the state and circumstances, penalties for non-disclosure of known HIV-positive status without transmission range from 90 days’ to 30 years’ imprisonment. In Missouri, the death penalty applies if unprotected sex without disclosure of known HIV-positive status results in transmission, although this has not yet been applied. Most HIV-specific laws do not distinguish between high-risk and low- or no-risk sexual behaviour; some do not allow for consent to unprotected sex; and some allow for prosecutions for protected sex in the absence of disclosure.13 Consequently, states with HIV-specific laws that have lowered the evidential bar (removing the requirement to show intent and/or to prove significant harm or transmission, and requiring disclosure) have generally had much higher prosecution rates than those without.14

Since there is no central database of HIV-related prosecutions, it is likely that the current estimate of 442 prosecutions and 251 convictions substantially underestimates the actual number. For example, although the GNP+ Global Criminalisation Scan reported eight prosecutions and five convictions in Iowa by the end of 2008, a recent newspaper article15 suggests there had, in fact, been 35 prosecutions and 25 convictions during that period. The last published study to examine all United States cases of prosecutions for HIV exposure or transmission found 316 prosecutions (of 300 individuals) between 1986 and 2001, with the annual number of prosecutions varying substantially, peaking at just over 50 in 1998. Only 84 (27%) of these prosecutions were for sexual HIV exposure or transmission through unprotected sex without disclosure. The remainder were for coercive sex (95 cases); prostitution whilst HIV-positive (40); biting whilst HIV-positive (49); spitting whilst HIV-positive (24); syringe injection or threat (12); selling blood (5); and other modes of alleged exposure, such as throwing faeces, scratching, or licking (7).16

Data collected from media reports suggest that of 79 reported arrests and prosecutions that took place between October 2007 and October 2009 (see http://criminalhivtransmission.blogspot.com), 45 (57%) were for otherwise consensual sexual HIV exposure or transmission through unprotected sex without disclosure, the majority (85%) of which did not result in HIV transmission.14 HIV transmission was alleged in just seven cases of unprotected sex without disclosure, although only one case used phylogenetic analysis to attempt to prove this.17 More than a quarter of all cases (27%) involved spitting (10), biting (9) or scratching (2). Of the 34 cases where outcomes were known, the vast majority (82%) pleaded guilty (26) or no contest (2). Of the six not-guilty pleas, five were found guilty by either judge (2) or jury (3). One not-guilty plea had charges dropped due to lack of evidence. The longest sentences were handed down in Texas (45 years for sexual HIV transmission without disclosure with six complainants; 35 years for spitting on a policeman while uttering threats18).

Recent significant developments in the United States include:

  • In November 2009, terrorism charges were laid against an HIV-positive man in Michigan who allegedly bit a neighbour during an altercation.19 The charges were criticised by the American Civil Liberties Union and Lambda Legal both of which submitted amicus briefs.20,21 The case is currently before the courts.22

  • In January 2010, an Olympic equestrian was arrested for HIV exposure following a complainant from his former (male) partner that he had not disclosed his HIV-positive status before having unprotected sex during their relationship.23 The case received widespread media coverage24,25 following an April 2010 report in the New York Times.26 The case is currently before the courts.

  • In April 2010, a new HIV-specific criminal law for New York was proposed by State Senator Cathy Young.27 The Senator cited Nushawn Williams as a ‘poster child’ for the law. Williams was sentenced to between four and twelve years in prison in 1998, after pleading guilty to two counts of reckless endangerment and one count each of criminal sale of a controlled substance and statutory rape. It was alleged that 13 women acquired HIV from unprotected sex with Williams, although this was never proven in court.28 Williams, who was due to be released in April after serving his full twelve-year sentence, has been kept in prison pending a civil-confinement hearing.29 The case is currently before the courts.

References

  1. Elliott R After Cuerrier: Canadian criminal law and the non-disclosure of HIV-positive status. Montreal: Canadian HIV/AIDS Legal Network, 1999
  2. Canadian HIV/AIDS Legal Network Supreme Court of Canada Decision in R v. Williams — Notice and commentary. September, 2003
  3. Globe and Mail Mother convicted of hiding HIV status for son's birth. 7 August, 2006
  4. Chan J Six month conditional sentence for mother who hid HIV status for son's birth. HIV/AIDS Policy & Law Review, 11(2/3): 45, 2006
  5. Ontario Court of Justice R. v. J.I. [2006] O.J. No. 3742 2006 ONCJ 356, 2006
  6. 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
  7. Xtra! Canada’s record of criminalization creep. www.xtra.ca, 20 August 2009
  8. County Court of Nova Scotia R v. Wentzell Unreported, 1989
  9. Petty MS Social responses to HIV: fearing the outlaw. Sexuality Research and Social Policy Journal 2 (2): 76-88, 2005
  10. Ontario Court of Justice (General Division) R v. Ssenyonga OJ No 1460, 1991
  11. Miller J African immigrant damnation syndrome: the case of Charles Ssenyonga Sexuality Research & Social Policy 2(2):31–50, 2005
  12. Xtra! Man charged with attempted murder for HIV nondisclosure. www.xtra.ca, 7 May 2009
  13. Galletly CL and Pinkerton SD Conflicting messages: how criminal HIV disclosure laws undermine public health efforts to control the spread of HIV. AIDS Behav 10(5):451-61, 2006
  14. Bernard EJ Kafkaesque: a critical analysis of US HIV non-disclosure, exposure and transmission cases, 2007-2009. 18th International AIDS Conference, Vienna, abstract THPE1016, 2010
  15. Iowa Independent Considering Changes to Iowa’s HIV Transmission Law may make Sense, but Hesitation Persists. 3 July, 2009
  16. Bray S Criminal prosecutions for HIV exposure: overview and analysis. Yale University Centre of Interdisciplinary Research on AIDS, 2003
  17. Bernard EJ US: Padieu case gets the 20/20 treatment; phylogenetic analysis totally misrepresented. Criminal HIV Transmission, 21 September 2009
  18. Bernard EJ Texas jury concludes saliva of HIV-positive man a “deadly weapon”, sentenced to 35 yrs jail. aidsmap.com, available online at: www.aidsmap.com/page/1430404/, 16 May 2008
  19. Bernard EJ US: Michigan bite man charged under anti-terrorism laws. Criminal HIV Transmission, 20 November 2009
  20. Michigan Messenger ACLU asks Macomb court to dismiss bio-terror charge. 1 April, 2010
  21. Michigan Messenger Four groups file brief in HIV-as-terrorism case. 20 April, 2010
  22. Michigan Messenger Defense in HIV-as-errorism case says charge should be dropped. 7 May, 2010
  23. Equestrian Examiner Olympic eventer Darren Chiacchia faces charges for apparent HIV non-disclosure. 23 January, 2010
  24. New York Times With AIDS, time to get beyond blame. 19 April, 2010
  25. Washington Times Growing chorus disputes need to tell HIV status. 14 April, 2010
  26. Thomas K Equestrian Charged With HIV-Related offense. 11 April, 2010
  27. Bernard EJ : details of New York Senator’s proposed HIV-specific law published. Criminal HIV Transmission, 23 April 2010
  28. Shevory T Notorious HIV: the media spectacle of Nushawn Williams. Minneapolis: University of Minnesota Press, 2004
  29. Thompson C NY sex offender to get trial for civil confinement. Associated Press, 7 May 2010

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A writer and advocate on a range of HIV-related issues, Edwin has a particular specialism in HIV and the criminal law. He works with national and international HIV organisations, including the International AIDS Society, GNP+ and UNAIDS, as well having as a long association with NAM as a writer on this topic and as the former editor of HIV Treatment Update. To visit Edwin's blog and respond to posts click here.

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.