Defining risk from a legal perspective

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

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:

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

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."