law in search of research

1. Quantifying and qualifying risk of HIV transmission (significant risk) 2. Analyzing morbidity and mortality associated with HIV infection (serious bodily harm) 3. Evidence to inform criminal justice and public health policy (“damned” statistics) 2

 Supreme Court decided an HIV person must disclose his/her HIV status before sex where significant risk of serious bodily harm to another person. › “Serious bodily harm” means HIV infection. › “Significant risk” included unprotected sexual intercourse between and man and a woman.  Where no disclosure, police can charge him/her with a crime, and a court can convict. 3

 Not clear what is included in the legal definition of “significant risk.”  PHAs have been charged and convicted of murder, common nuisance and assault- based charges for unprotected intercourse.  What about oral sex and other types of sex, and other factors (i.e., condoms) that can increase or mitigate HIV transmission risk? 4

 How will legal definition of “significant risk” take into account evidence about HIV transmission and … › HIV viral load › STIs other than HIV › Condoms › Role played during sex (insertive versus receptive) › Physiological characteristics of men and women › Physiological differences between rectum and vagina › Male circumcision 5

 HIV positive man faced numerous charges related to his failure to disclose his HIV status to numerous HIV negative women prior to sexual intercourse.  Most thorough published analysis by a Canadian court of what “significant risk” means. › The judge examined in detail evidence about: › Mabior’s medical and tx history  Condom use (effectiveness of condoms, proper use)  Viral load (Swiss Statement and reaction to it) 6

 Conclusion: HIV positive male does not have a duty to disclose his HIV status before sexual intercourse with a woman if he uses a condom and his viral load is undetectable.  Not clear whether this will become the law throughout Canada. 7

 “The risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that test [significant risk of serious bodily harm]. In this case the complainants were exposed to a significant risk of serious harm to their health. Indeed their very survival was placed in jeopardy. It is difficult to imagine a more significant risk or a more grievous bodily harm.” – Mr Justice Cory, R v Cuerrier (Supreme Court of Canada, 1998) 8

 Supreme Court decided Cuerrier case in 1998, based on events that took place before  Since 1995 significant improvements in treatment of HIV infection and co- morbidities. › Improved prognosis; reductions in mortality & morbidity. › Now considered a chronic, manageable infection. › 9

 research studies, especially systematic reviews  experts capable of explaining clearly in court the literature  experts capable of providing their expert opinion—applying the research to the facts of a particular case—and defending it 10

 “As Benjamin Disraeli so aptly put it, there are lies, damn lies and statistics. Yet statistics may be useful in certain circumstances. No doubt both sides can gain comfort from statistics when the public policy issue is considered… If the application of the Criminal Code really does impede the control of AIDS it will be for Parliament to determine whether the protection afforded by the Code should be curtailed in the interests of controlling the plague solely by public health measures.” – Mr Justice Cory, R v Cuerrier (Supreme Court of Canada, 1998) 11

 The Supreme Court presumed that public health law and criminal law have a role to play in HIV prevention. › “…the criminal law does have a role to play both in deterring those infected with HIV from putting the lives of others at risk and in protecting the public from irresponsible individuals who refuse to comply with public health orders to abstain from high-risk activities. This case provides a classic example of the ineffectiveness of the health scheme. …Through deterrence it [criminal law] will protect and serve to encourage honesty, frankness and safer sexual practices.” – Mr Justice Cory, R v Cuerrier (Supreme Court of Canada, 1998) 12

 A big presumption—HIV prevention is best achieved where public health and criminal law play roles.  But we have virtually no evidence about … › public health case management’s ability to reduce HIV risk behaviours › criminal law’s power to reduce HIV risk behaviours › impact of criminal law on access to HIV testing, care, treatment and support, esp on members of marginalized groups › impact of the criminal law on the health and well- being of people living with HIV 13

› assistance in acquiring and assessing knowledge › access to summaries of bodies of literature, rather than results from single studies › a rapid response service that can link them to the latest knowledge on a given issue › information on how to adapt and apply knowledge to their policies and program › links to researchers who can help them answer [public] health services questions - The OHTN Knowledge to Action Strategy (September 2007) 14