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Prosecuting COVID-19 non-disclosure misguided | Richard Elliott, Ryan Peck and Léa Pelletier-Marcotte

Wednesday, April 29, 2020 @ 10:32 AM | By Richard Elliott, Ryan Peck and Léa Pelletier-Marcotte


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Léa Pelletier-Marcotte
We read with dismay the recent commentary suggesting the use of sexual assault law to prosecute allegations of non-disclosure of the COVID-19 virus (Lawrence David, “COVID-19 and consent to sexual activity”).

David’s proposal rests on the jurisprudence criminalizing HIV non-disclosure in certain circumstances as “fraud” that vitiates consent to sex. However, that jurisprudence is disturbingly overbroad; it is also not as straightforward as he suggests. Furthermore, extending such law further in response to COVID-19 would be ill-advised and harmful, as the experience with criminalizing HIV tells us.

First, David asserts that, pursuant to the Supreme Court of Canada’s decision in R. v. Mabior 2012 SCC 47, disclosure of HIV-positive status to a sexual partner is always required unless two conditions are both met — the use of a condom and a low viral load of the HIV-positive partner. We have been critical of how such an overly broad misinterpretation of Mabior has led, in many cases, to unjust prosecutions in cases where there was no significant risk of harm.

We submit that the court did not say that both using a condom and having a low viral load was the only way to negate a “realistic possibility of HIV transmission,” the threshold triggering a duty to disclose. In fact, it explicitly contemplated the law could evolve. Indeed, since Mabior, some courts have acquitted people accused of HIV non-disclosure on the sole basis of a low or undetectable viral load (even where no condom was used), in line with the scientific consensus that there is negligible or no risk of sexually transmitting HIV in such circumstances.

We also know of at least one court decision finding that condom use alone was sufficient to preclude liability, given condoms’ effectiveness in preventing HIV transmission. This is also in keeping with the most recent scientific consensus.

Second, the law has been damagingly applied too broadly in other ways as well. David suggests that intentionality and willfulness constitute the mens rea of the offence, ensuring consistency with the Charter. Unfortunately, HIV prosecutions to date, using the law of sexual assault, indicate that de facto the bar is set rather lower.

In the overwhelming majority of cases, people charged with non-disclosure had no intention of harming their partners or even exposing them to a significant risk of transmission. Disclosure of HIV-positive status is a complex undertaking and some people are not in a position to safely disclose their status. These are not instances in which the heavy hand of the criminal law is justifiably applied.

The result of the overbreadth described above has been an egregious over-reach of the criminal law, conflating instances of “fraud” in a consensual sexual encounter, posing little or no risk of harm, with instances of actual violence, threat or coercion.

Sexual assault, one of the most serious offences in the Criminal Code, carries a maximum penalty of life imprisonment, mandatory designation as a sex offender and, for non-citizens, likely deportation. The federal attorney general has explicitly recognized the “overcriminalization of HIV.” More recently, a parliamentary committee has called for reform, including removing the use of sexual assault law in such cases.

Third, we cannot ignore the discriminatory and disproportionately harsh application of HIV criminalization. Sentences for sexual assault convictions based on HIV non-disclosure are very often substantially greater than those for cases of clearly coercive sex, an indicator of HIV stigma at work. Available data also demonstrates a disproportionate impact of HIV non-disclosure prosecutions on black men and Indigenous women, an unsurprising result given the history of racism within the criminal law system.

The experience with COVID-19 is already raising similar concerns. With the quick default to punitive responses in the name of public health, those who are socioeconomically marginalized and already surveilled, policed and criminalized disproportionately experience this burden. These concerns have prompted the national Canadian Coalition to Reform HIV Criminalization to issue a statement cautioning against the misuse of the criminal law yet again.

Fourth, policing and punishment are rarely effective when the response to a public health challenge requires people — including those who have good reason to mistrust authorities — to seek out testing (still unavailable for most in the case of the COVID-19 virus) and to co-operate with contact tracing efforts. If prosecution, imprisonment and deportation are possible outcomes, then there is good reason to avoid such engagement, ultimately to the detriment of public health.

Finally, the COVID-19 pandemic intensifies concerns about sexual and other violence. Women, girls and others are now confined at home with abusers, and access to shelters and other support services is even more limited than usual. Addressing those conditions and demanding action from governments to invest in needed services would do far more to protect and promote sexual and physical autonomy than resorting to the worrisome extension of sexual assault law to criminalize instances of otherwise consensual sexual activity.

One hallmark of the rush to criminalize HIV has been the adoption of laws, or the overly broad interpretation or application of pre-existing laws, driven by misinformation, fear and stigma rather than science. In the context of the current COVID-19 pandemic, the same concerns are glaringly obvious.

In the churn of rapidly evolving science and pressure to “do something,” it is easy to reach for familiar tools and repeat misguided patterns. But we already have evidence of the harms caused to individuals and public health, and to the law of sexual assault, by misusing the criminal law in the context of HIV non-disclosure. We should not replicate these harms by extending the law further.

Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network. Ryan Peck is executive director of the HIV & AIDS Legal Clinic Ontario. Léa Pelletier-Marcotte is co-ordinator of the HIV/AIDS and human rights program at COCQ-sida, the provincial federation of HIV organizations across Quebec. The authors would like to thank Cécile Kazatchkine, senior policy analyst with the Legal Network, who contributed to this article. All the authors are members of the Canadian Coalition to Reform HIV Criminalization.

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