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Criminalisation of HIV transmission: a reply
- James Chalmers (17 November 2001)
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Clarification - No HIV-specific offense in Canada
- Catalina Nina (18 November 2001)
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Criminalisation of HIV transmission
- James E Parker (18 November 2001)
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Clarification regarding Cuerrier decision in Canada
- Richard Elliott (19 November 2001)
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Criminalisation of HIV transmission: a further comment
- James Chalmers (20 November 2001)
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Exclusion of confidential research material from the judicial process
- A R W Forrest (22 November 2001)
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James Chalmers, Lecturer in Law School of Law, University of Aberdeen, AB24 3UB
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Dear Editor, I wish to register my concern with the content of an article by Sheila M Bird and Andrew J Leigh Brown regarding the recent prosecution of Stephen Kelly for infecting his sexual partner with HIV.[1] My observations on a number of points made by the authors follow, in the order in which those points appeared in the article. I have tried to keep these comments as brief as possible. Firstly, the authors assert that the sentence of five years imprisonment imposed on Kelly is "a harsh sentence by international standards". Their authority for this is a newspaper article.[2] It is difficult to interpret this article as supporting their statement, as out of the four cases to which it refers, two of the sentences imposed were actually harsher than that imposed on Kelly. Furthermore, one of the two cases in which a lighter sentence was imposed appears to have been a case of exposure to the risk of HIV transmission, rather than actual transmission. Contrary to the authors' assertion, there is no reason to believe that the sentence imposed in the Kelly case is "harsh by international standards". Probably the most detailed analysis of the sentencing principles involved can be found in the Canadian case of R v Mercer,[3] which is not referred to by the authors. In that case, the Canadian courts took the view that a sentence of eleven years was appropriate in a case where the accused had infected two women with HIV after telling them that it was unnecessary to use condoms (despite knowing that he was HIV-positive). Compared to Mercer, the sentence imposed in the Kelly case appears positively lenient. Secondly, the authors state that the Kelly verdict "has criminalized undeclared, but not untested, HIV transmission". They suggest that where a person is notified that a previous sexual partner is HIV-positive, "they can refuse an HIV test and thereby, despite knowing their high HIV risk, transmit HIV infection with impunity before the law." In my view, this is entirely incorrect. Kelly was convicted of the offence of recklessly causing injury to another. Recklessness does not require that the individual is positively aware of their HIV-positive status. It would clearly suffice that they were aware of a high risk that they were HIV- positive and chose to conceal this fact from their partner.[4-5] Thirdly, the authors assert that the Kelly case "leaves doubt about which behaviours are criminal. Is it a crime for someone who conceals their HIV infection to have unprotected intercourse if HIV transmission does not occur?" The answer is almost certainly that they are guilty of the crime of reckless endangerment.[5] Fourthly, the authors question whether "someone who conceals their HIV infection be prosecuted if they have protected intercourse that results in HIV transmission because, for example, a condom breaks?" The answer is that such a person could probably not be said to be reckless, because they have taken reasonable precautions to prevent their partner from harm.[5] That would be consistent with the Canadian position. The authors appear to be in error in suggesting that this would be a crime in Canada, as the Canadian Supreme Court clearly suggested otherwise in the Cuerrier case.[6] Fifthly, the authors state that "Far from protecting the public, the Glenochil judgment has endorsed abrogation of individual responsibility in sexual partnerships by asserting a legal duty of disclosure on the infected partner". It should be borne in mind that Anne Craig specifically asked Stephen Kelly whether there was any reason (other than pregnancy) why condoms should be used in their relationship. To suggest that she abrogated responsibility for her own sexual health - and that, with respect, is precisely what the authors do suggest - is unfair and incorrect. The indictment in the Kelly case expressly narrated that Kelly "did pretend to [Craig] that [he was] not infected with" HIV - a fact which the authors do not mention. It is of course true that the use of condoms should be encouraged even where one partner asserts to the other that he or she is not HIV- positive. However, the approach which appears to be taken by the authors - that enquiring as to one's partner's HIV status is necessarily insufficient - inevitably leads to the conclusion that one should always insist on the use of condoms in a relationship. Given that such a course of action would inevitably lead to the extinction of humanity, this line of argument cannot be accepted. In any case, it rests on a philosophically indefensible concept of responsibility. The authors appear to believe that responsibility is something that belongs to only one party in a relationship, which must be passed around like a box in a game of pass-the-parcel. However, attributing responsibility to one party does not mean that the other party has no responsibility whatsoever. At the risk of trivialisation, one may consider the following example. It would clearly be irresponsible to leave one's car parked with the keys in the ignition. But to suggest that a passer-by who seizes the opportunity and steals the car is not responsible for the theft would clearly be absurd. Yet that is the logic of the authors' position. Contrary to what the authors suggest, responsibility can be shared between two parties. Sixthly, the authors assert that the Kelly judgment "is likely to undermine uptake of HIV testing and risks a one third increase in new HIV infections in Scotland." The "one third" increase is based upon a possible 25% decrease in uptake of HIV testing, but no support is offered for the assumption of a decrease, nor for assuming that the decrease would be of this magnitude. The authors do not mention the fact that a large number of other jurisdictions - including Canada and various U.S. and Australian states[5] - have adopted legislation criminalising the transmission of HIV, without any apparent evidence of a decrease in the uptake of HIV testing. Indeed, in the Cuerrier case, which is mentioned by the authors, the Supreme Court of Canada explicitly came to the conclusion that there was "no evidence" that the criminalisation of HIV transmission in Canada had resulted in an "adverse effect on testing."[7] It should be noted that the court in that case had the benefit of hearing submissions from the Canadian AIDS Society, the Persons with AIDS Society of British Columbia and the Canadian HIV/AIDS Legal Network. I should make it clear, however, that I would not wish to dispute the authors' conclusion that "urgent review by the Scottish Executive is required to minimise the negative effects on public health and molecular science". Yours sincerely, James Chalmers Lecturer in Law, University of Aberdeen [1] Bird SM, Leigh Brown AJ. Criminalisation of HIV transmission: implications for public health in Scotland. BMJ 2001;323:1174-7. [2] MacLaren L. We all need to be loved. Herald 2001; March 17:10. [3] (1993) 84 C.C.C. (3d.) 41. [4] Taitz J. Legal liability for transmitting AIDS. Medico-Legal Journal 1989;57:216-228, at 219. [5] Chalmers J. Sexually transmitted diseases and the criminal law. Juridical Review (in press). [6] R v Cuerrier [1998] 2 SCR 371, per Cory J at para 129. [7] R v Cuerrier [1998] 2 SCR 371, per McLachlin CJ at para 72. |
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Catalina Nina, Community worker Ontario
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Further to Mr. James Chalmers' assertion that "Canada ... adopted legislation criminalising the transmission of HIV", it should be clarified that Canada has not created an HIV-specific criminal offence. Detailed information, in-depth analysis and policy recommendations by the Canadian HIV/AIDS Legal Network, relevant to this debate on criminal law and HIV, are available at <http://www.aidslaw.ca/Maincontent/issues/criminallaw .htm> including: - "Criminal Law and HIV/AIDS: Strategic Considerations - A Discussion Paper" - "After Cuerrier: Canadian Criminal Law and the Non-Disclosure of HIV-Positive Status" - "Criminal Law and HIV/AIDS: Final Report" - 8 info sheets on Criminal Law and HIV/AIDS - and numerous articles published in the Canadian HIV/AIDS Policy & Law Review A must-read! Catalina Nina Community worker |
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James E Parker, Retired Paediatrician 289 Mc Callum Rd Abbotsford BC CANADA
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The imputation by Bird and Brown that somehow the Glenochil decision is flawed should be cause for concern. It would appear to be self evident that knowingly transmitting any disease or malign condition to an unsuspecting victim should be considered criminal behaviour. And yet the authors would have us believe that somehow HIV is different as this may have negative public health effects. This state of affairs has arisen because experts in the 1980's believed that rather than seeking the whereabouts of disease, infection control would be better served by prioritising confidentiality for people infected with HIV !. Also HIV was not deemed notifiable. The sense of alarm increases when we read 'Thus in practise in the United Kingdom the confidentiality of the index patient has had priority over informing and safeguarding contacts --- be they healthcare workers, drug injectors or sexual partners'. While the authors propose in solution more bureaucracy, forms and counselling, there is another option. Acknowledge the mistakes in philosophy of the 80's 'experts'. As with syphilis, HIV infection should be notifiable. Screening for disease should be actively encouraged and it's appropriate entertainment in differential diagnosis should have no constraints. Nor should those who seek to protect the public health in the execution of their duties have reason to fear the wrath of the courts or licensing bodies. This can be achieved with a modicum of privacy in a humane manner and without the necessity to placard or stigmatize - but it needs protection in law. Since Sept 11 we have seen the mobilization of extensive measures to combat a 'war' on terrorism. Interestingly one of the central planks in this endeavour has been the search for evidence regarding the whereabouts of perpetrators. In contrast those directing the AIDS 'war' in the early 80's paid scant attention to the efforts of some investigators ( C Heath and others -JAMA ) regarding the value of case finding and contact tracing, concentrating instead on 'universal precautions' and the strength of latex. A total victory in the war against terrorism is a matter of some conjecture. The same may be said of HIV without significant changes in philosophy. James E Parker |
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Richard Elliott, Director, Policy & Research - Canadian HIV/AIDS Legal Network Toronto, Ontario M4W 3P4
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Dear Editor: In response to the article by Bird & Brown ("Criminalisation of HIV transmission: implications for public health in Scotland, 17 November 2001), I wish to offer a correction/clarification regarding the state of Canadian law on this point. I would also like to offer a comment about the issue of evidence-based policy. Bird & Brown state that: "The Cuerrier judgment in Canada has made HIV disclosure to sexual partners obligatory in law, even if condoms are used always." An article written by me is cited for this proposition. The state of Canadian law is not quite so clear as this, and this point is addressed in my article cited by Bird & Brown. The article can be viewed on-line at: http://www.aidslaw.ca/Maincontent/otherdocs/Newsletter/spring99/supreme.htm. Numerous other materials on the topic of criminal law and HIV/AIDS can be found via: http://www.aidslaw.ca/Maincontent/issues/criminallaw.htm.) The Cuerrier judgment of the Supreme Court of Canada states that, under Canadian criminal law, a person with HIV may be charged with aggravated assault if, without disclosing their HIV-positive status, they engage in activity that poses a "significant risk" of transmitting the virus. Given the facts of the case in Cuerrier (unprotected penile- vaginal intercourse by an HIV-positive man with two HIV-negative women on multiple occasions), we can conclude that the court felt that unprotected vaginal penetration with ejaculation by an HIV-positive man carried a risk of transmission that was "significant" enough to trigger a legal duty to diclose. (Given available evidence about risk levels and mode of transmission, it would seem safe to conclude that unprotected anal penetration with ejaculation by an HIV-positive man would be viewed similarly by the Court.) However, there is no specific explanation by the Supreme Court of Canada which activities that risk transmitting HIV carry a high enough degree of risk to be considered (legally) significant. In particular, the question of penetrative sex with the use of a condom is not definitively addressed by the Court. There is a suggestion by the Court (not a clear ruling) that "the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant" so that there would be no duty to disclose. There has not yet been a case brought before Canadian courts in which the facts squarely raise this question. Therefore, contrary to the statement by Bird and Brown, it remains uncertain in Canada whether disclosure to sexual partners is "obligatory in law, even if condoms are used always." That said, the key point raised by Bird & Brown is one that deserves serious consideration. It was noted by Chalmers, in response to Bird & Brown, that the Supreme Court of Canada concluded in the Cuerrier case that there was "no evidence that the criminalisation of HIV transmission in Canada had resulted in an adverse effect on testing." Furthermore, Chalmers points out that the court had heard from 3 HIV/AIDS organizations, including our own. This is quite right. There is, indeed, very little evidence supporting this proposition. However, it is equally true that there is very little evidence in support of the opposite conclusion, namely that criminalization and criminal prosecutions of people living with HIV/AIDS for risk behaviours have no detrimental effect on uptake of HIV testing. I would suggest that we simply do not know what the impact is -- there has been no effort, to my knowledge, to identify this impact, while simultaneously controlling for other factors that may affect rates of HIV testing in a jurisdiction. It also is unknown whether any decrease in HIV testing rates following introduction of new legislation or media coverage of a high-profile criminal prosecution would, if it materialized, be a temporary decline or whether criminal law policy would overall have a lasting effect on testing rates. Data is also lacking regarding the demographic distribution of any such effect -- would certain individuals or populations be more influenced by criminal law policy than others in their decisions about HIV testing? It is, therefore, a mistake to write off this concern. Certainly common sense would suggest that at least some percentage (perhaps small, perhaps not) will be concerned about the additional negative ramification of testing HIV-positive represented by possible criminal liability. Recall that it was concern about the negative consequences of testing positive (eg, breach of confidentiality, attendant stigma and discrimination, loss of employment, loss of insurance, etc) that led to the implementation (in some jurisdictions) of anonymous HIV testing, precisely because some of those at risk of HIV infection (and perhaps those at highest risk) were less likely to come forward for testing if their identity and positive test result were to be reported to, and recorded by, government authorities. In the absence of the necessary data, I do not know whether the assumption by Bird and Brown of a 25% decrease in testing rates is realistic. It may well be too high. However, it is equally problematic to completely dismiss the possibility that, at least for some individuals, the risk of criminal prosecution and liability will have an impact on the willingness to be tested. If other readers are aware of any data that speaks to this issue, it would be most helpful if they were to share this information with us and with other readers. Sincerely, Richard Elliott, LL.B. Director, Policy & Research Canadian HIV/AIDS Legal Network relliott@aidslaw.ca |
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James Chalmers, Lecturer in Law University of Aberdeen, AB24 3DB, Scotland
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Dear Editor, Further to Mr Elliot's letter, I should perhaps make it clear that my intention was not to "write off" the concern that the Kelly case might deter persons from taking HIV tests. I agree fully that this is a valid concern, and concur with Bird and Leigh Brown's suggestion that the Scottish Executive should "commission the necessary measurements to guide medical and legal decision making." If nothing else, the Kelly case should at least provide an opportunity for proper research into whether the criminalisation of HIV transmission does indeed deter testing. What I find surprising (and I am speaking generally here, rather than simply in reply to Mr Elliot) is that so little attention is paid to the issue of deterring the type of conduct in which Stephen Kelly engaged. It is true that the Kelly case might have a "negative deterrent effect" (by deterring testing), but it is equally true that it might have a "positive deterrent effect" (by encouraging HIV-positive persons to either (a) disclose their HIV-positive status to their sexual partners or (b) refrain from unprotected sexual intercourse). It is, therefore, possible that the positive deterrent effect might well outweigh the negative deterrent effect insofar as the incidence of new HIV infections is concerned. This possibility should not be written off either. I acknowledge that Bird and Leigh Brown, in their mathematical model, did factor this possibility in to some extent. However, they did this by assuming that only 10% of HIV-positive individuals would not have disclosed their HIV-positive status prior to the Kelly case, and that 70% of those non-disclosers would use condoms. These assumptions sit rather uneasily with the published research on the issue (admittedly conducted in the U.S. and not the U.K.), which broadly suggests (a) that persons with multiple sexual partners are significantly less likely to disclose than persons with only one sexual partner and (b) that condom use is not significantly associated with non-disclosure.[1-2] One recent U.S. study showed that only 60% of knowingly HIV-positive individuals disclosed their HIV-positive status to all their sexual partners, and that 57% of non- disclosers used condoms less than all the time.[1] Their comparative assumption - that subsequent to the Kelly case, 100% of HIV-positive individuals will disclose their HIV-positive status, is perhaps equally objectionable. However, the initial assumptions of 90% disclosure and 70% condom use in their model diminish the possible consequences of the "positive deterrent effect" to a point that I suspect rather skews the outcome of their analysis. We should be wary of assuming that the use of the criminal law in this area will have a substantial "negative deterrent effect" but a minimal "positive deterrent effect". That would seem to me to be, prima facie, illogical and unwarranted without further evidence. One final observation is perhaps necessary. There is a massive international legal and medical literature on the issue of the criminalisation of HIV transmission, but almost none of this valuable material is referred to in Bird and Leigh Brown's report. This is rather disappointing - for while we must scrutinise the implications of the Kelly case for public health in Scotland with great care, we should not attempt to reinvent the wheel in doing so. Yours sincerely,
[1] Stein MD, Freedberg KA, Sullivan LM et al. Sexual ethics: disclosure of HIV-positive status to partners. Arch Intern Med 1998;158:253-257. [2] Marks G, Richardson JL, Maldonado N. Self-disclosure of HIV infection to sexual partners. Am J Public Health 1991;81:1321-1322. |
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A R W Forrest, Professor of Forensic Toxicology University of Sheffield, Medico-legal Centre, Watery Street, Sheffield S3 7ES
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Editor, Bird and Leigh Brown raise an important point; should certain types of research material be excluded from use by investigators of an alleged crime and from use as evidence in court by the prosecution because there is a wider public interest in being able to assure those to whom the information relates that the information would not be subject to such use? [1] Turning the proposition round, should a person accused of a crime be unable to access such data even if (s)he beleives that it is crucial to their defence? Obviously such information is sensitive, but to totally exclude it from the judicial process will certainly lead to miscarriages of justice, which would arguably be a greater mischief than any breach of confidentiality. The Churchill-Matrix Case is only one of many cases that illustrate this point. [2] There already exists a mechanism in England and Wales, under section 11(1)of the Police and Criminal Evidence Act 1984 whereby "excluded material", including human tissue or tissue fluid taken for purposes of diagnosis and treatment, but not research, and "special procedure material", which includes material aquired during the course of a profession and held in confidence, can only be used in a criminal investigation on the order of a circuit court judge. If those holding the material think the judge's order is inappropriate then they can seek judicial review. We have to rely on someone's good sense to balance the conflicting needs of research confidentiality and access by criminal investigators to material held in confidence; if we cannot rely on the ability of the Queen's judges to carry out this balancing act, with the back up of judicial review if the holder of the material thinks the circuit court judge has got it wrong, then who can we trust? A final point is that Bird and Leigh Brown describe Kelly's Case as R v. Kelly. As it is a Scottish case, the correct citation should be HMA v. Kelly. [3] A R W Forrest [1] Bird SM, Leigh Brown AJ. Criminalisation of HIV transmission: implications for public health in Scotland. BMJ 2001;323:1174-7. [2] R v Paul Henderson, Peter Allen, Trevor James Abraham. Central Criminal Court October 1992. [3] Her Majesty's Advocate v. Stephen Robert Kelly [2001] ScotHC 7 |
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