HIV Justice Network Law Commission OAPA 1861 Scoping Consultation Response

8/9/2019 HIV Justice Network Law Commission OAPA 1861 Scoping Consultation Response

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LAW COMMISSION SCOPING CONSULTATION PAPER: REFORM OFOFFENCES AGAINST THE PERSON

Submission from Edwin J Bernard, co-ordinator, HIV Justice Network11 February 2015

Thank you for the opportunity to comment on the Law Commission’s scopingconsultation on Reform of Offences Against the Person.

As an advocate for people living with HIV (having been living with HIV myselffor three decades); an author of a number of books 1, a peer-reviewed paper 2,numerous articles 3, presentations 4 and reports 5 on the issue; as a consultanton the most recent guidance from UNAIDS on limiting the overly broad use ofthe criminal law in relation to HIV non-disclosure, exposure and transmission 6;and as co-ordinator of the HIV Justice Network 7 I appreciate the efforts of theLaw Commission in consulting with a number of key stakeholders, includingmyself, whilst preparing this paper, and hope that these efforts result in afull review that will further limit the role of the criminal law in relation toprosecutions for sexual disease transmission, to intentionaltransmission only, in order to protect both public health and humanrights .

My comments relate exclusively to HIV. Although the application in Englandand Wales of the Offences Against the Person Act 1861, since 2003, is tosexual transmission of any disease, prosecutions – and case law – havealmost exclusively been for reckless HIV transmission. Accordingly, I willfocus only on responding to the final six questions (33-38) in Chapter 6.

1

Criminal HIV Transmission (NAM, 2007) and HIV and the Criminal Law (NAM, 2010)2 Bernard EJ et al. HIV forensics: pitfalls and acceptable standards in the use of phylogeneticanalysis as evidence in criminal investigations of HIV transmission . HIV Med. 2007Sep;8(6):382-7.3 See, for example, Nadja Benaissa's HIV trial is a distracting sideshow . The Guardian, 17

August 2010, and my blog (2007-12), http://criminalhivtransmission.blogspot.co.uk/ 4 See, for example, Criminal prosecutions for HIV non-disclosure, exposure and transmission:overview and updated global ranking at 19th International AIDS Conference, Washington DC,July 22-27, 2012. Available to watch at: http://vimeo.com/46807432 5 See, for example, Advancing HIV Justice (Global Network of People Living with HIV/HIVJustice Network, 2013), available at: http://www.hivjustice.net/advancing/ 6 Background paper and 2013 guidance available at: http://www.hivjustice.net/news/unaids-publishes-updated-detailed-guidance-on-hiv-criminalisation/ 7

A global information and advocacy hub for individuals and organisations working to end theinappropriate use of the criminal law to regulate and punish people living with HIV. See:http://www.hivjustice.net


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Edwin J Bernard/HIV Justice Network Page 2 11/02/2015

I would like to especially note that the scoping paper did an excellent jobsummarising the problems and policy issues relating to the overly broad useof the criminal law in relation to sexual disease transmission (6.36-6.58).

However, whilst it is true that "the law in England and Wales comes fairly

close to the recommendations of UNAIDS" (6.58) and the English and Welshmeaning of recklessness is "not far from what some other countries regard asintention" (6.58) that is not the same as the UNAIDS interpretation of intent:i.e. where a person knows his or her HIV-positive status, acts with theintention to transmit HIV, and does in fact transmit it.

I will now, briefly, attempt to answer the consultation questions relating tosexual disease transmission. I have also seen, and been consulted on, thesubmission from NAT (National AIDS Trust) and concur completely with, andfully support, their more detailed response.

Consultation question 33We consider that future reform of offences against the person should takeaccount of the ramifications of disease transmission. Do consultees agree?

I agree that any future reform of offences against the person should takeaccount of disease transmission. Any wider review of the law and diseasetransmission should still form part of the review of offences against the personconducted by the Law Commission. No legislation reforming offences againstthe person should be enacted before its application to, and implications for,disease transmission are determined. For the law more generally to bechanged without first determining how it applies to disease transmissionwould cause immense confusion and harm.

Consultation question 34We also consider that in such reform consideration should be given to:

(1) whether disease should in principle fall within the definition of injury inany reforming statute that may be based on the draft Bill;

(2) whether, if the transmission of sexual infections through consensualintercourse is to be excluded, this should be done by means of aspecific exemption limited to that situation. This could be considered ina wider review; alternatively

(3) whether the transmission of disease should remain within the offencesas in existing law.

Do consultees agree?

I believe that reform consideration should be given to ending all prosecutionsfor reckless transmission of disease. In addition there are problems in reformconsidering reckless transmission in the way proposed in the question.

I do not see why, notwithstanding the concerns raised at 6.68 ("it would gofurther than required to meet these recommendations") the wording of thedraft Bill could not be adopted as it stands, so as to exclude disease from the


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definition of injury except for the purposes of the offence of intentionallycausing serious injury.

Given that the scoping paper concedes that the criminal law plays very little, ifany, role in deterring individual or general behaviour related to sexual disease

transmission, there is no real justification not to follow UNAIDS guidance inthis area.

I would specifically like to comment on assertions made in paragraph 6.69["If the 1998 Bill was considered as a reform option worth pursuing, it wouldneed further consideration to ensure that the criminal law could protectagainst reckless transmission of infection otherwise than by consensualsexual intercourse".] and paragraph 6.79 ["...it would leave a gap in the law farwider than necessary to accommodate the concerns mentioned."]

It would still, in my view, be possible to punish reckless transmission ofdisease during the commission of a sexual assault, or reckless infection of acommunicable disease during the commission of a physical assault (when, forexample, a needle/syringe is used as a weapon) through sentencingenhancements.

Paragraph 6.69 continues as follows. " In addition, if the 1998 Bill was to bedeveloped in a further law reform project, a detailed review would benecessary since professionals in the relevant fields are by no meansunanimous. This review would have to consider both the consequences for

public health policy and the broader ethical question of whether public healthconsiderations should be the main policy factor. Pending such a review, thesafer course might be for the new offences to follow the broad principlesgoverning offences against the person, and preserve the breadth of the

present law."

Given the detailed overview of the problems and policy issues relating to theoverly broad use of the criminal law in relation to sexual disease transmission(6.36-6.58), the lack of complete consensus by the minority of "professionalsin the relevant fields" does not suggest to me that there needs to be furtherexamination of the " consequences for public health policy and the broaderethical question of whether public health considerations should be the main

policy factor." It is evident to me – and UNAIDS and most other informed,clear thinking experts on this issue – that if the criminal law in this area doesnot consider public health above and beyond any other consideration (i.e.deterrence, punishment, ethical norm creation) then it does more harm thangood.

Consultation question 35If the transmission of disease is to be included in any future reform includingoffences causing injury, it will be necessary to choose between the following

possible rules about the disclosure of the risk of infection, namely:(1) that D should be bound to disclose facts indicating a risk of infection

only if the risk is significant; or


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(2) that D should be bound to disclose facts indicating a risk of infection inall circumstances; or

(3) that whether D was justified in exposing V to that risk without disclosingit should be a question for the jury in each particular case .

Do consultees have any preference as to these possible rules?

Choosing only between these three scenarios is, in fact, a 'red herring'.Currently, disclosure is not bound under any circumstance, but is available asa defence to recklessness if sexual transmission of disease is alleged to havetaken place. Consistent with UNAIDS guidance, I do not support any legalrequirement to disclose one’s HIV/STI status or any penalty for not doing so.

Consultation question 36We consider the reform of offences against the person should consider theextent to which transmission of minor infections would be excluded from thescope of injury offences. Do consultees agree?

I agree that the reform project should consider the extent to which minorinfections are excluded from the scope of injury offences.

Consultation question 37Do consultees consider that future reform should pursue the possibility ofincluding specialized offences of transmission of infection, endangerment ornon-disclosure?

I do not believe that the Law Commission full review should consider the casefor new specialized offences of transmission of infection, or of endangermentor non-disclosure. I am pleased to see this is also the view of the LawCommission in its scoping paper and strongly encourage this position to bemaintained in the final submission to Government and into the full review,should that take place.

So far, England and Wales has led the world in the development of policy inthis area (in the absence of legislation limiting the overly broad use of thecriminal law) with the creation of prosecutorial and police guidance. It wouldbe disastrous to the global standing of England and Wales as both a leader in

pragmatic policy, and in supporting the public health and human rights ofdeveloping countries through investment in HIV and health systems via DFID,if the law relating to sexual transmission of disease were expanded to include,for example, prosecutions for non-disclosure or potential or perceivedexposure.

Having monitored international law and policy in this area for the last decade,it is worth noting that criminal law reform relating to sexual transmission ofdisease has always further limited the role of the criminal law, and not furtherexpanded it. 8

8 See, for example, Chapter 9: 'Advocating for law reform' in Advancing HIV Justice , op cit.


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For example, in February 2011, Denmark suspended Article 252 of theCriminal Code pending an inquiry by a government working group to considerwhether the only HIV-specific law in western Europe should be revised orabolished. 9 There had previously been at least 20 prosecutions and at least15 convictions for either sexual HIV exposure or transmission under Article

252, including two as recently as 2008.10

The courts are now in the process ofreviewing all HIV-related criminal cases from 2007 – the year that NationalBoard of Health informed the Ministry of Justice that HIV was no longer a life-threatening illness. 11

The law was suspended because the National Board of Health had informedthe Ministry of Justice that HIV was no longer, as the law specified, a “life-threatening and incurable disease”, citing data from a Danish cohort studypublished in 2007 which found that for people living with HIV in Denmark whoare on treatment, HIV had become a manageable, chronic health condition. 12 The working group confirmed in November 2011 that the legal basis for thecurrent statute no longer existed and recommended its repeal. As of writing,no new law has been enacted, and is unlikely to be enacted, as time hasshown that the 'sky does not fall' when it is not possible to criminallyprosecute sexual disease transmission. In fact, new HIV infections inDenmark have fallen since 2012 and are expected to continue to do so. 13

Similarly, law reform that has further limited the use of the criminal law toprosecute sexual disease transmission has recently taken place inSwitzerland in 2012-2013 14 and Iowa (United States) in 2014 15 , and isproposed for Victoria (Australia) in 2015 16 .

Consultation question 38Do consultees have observations on the use of ASBOs, SOPOs or othermeans of penalizing non-disclosure?

9 HIV Justice Network. Denmark: Justice Minister suspends HIV-specific criminal law, sets upworking group. 17 February 2011.10 Global Criminalisation Scan: Denmark . GNP+, October 201211 HIV Justice Network. Denmark: Man convicted in 2007 under now suspended lawacquitted; further cases to be reviewed. 8 August 2012.12 Lohse N et al. Survival of persons with and without HIV infection in Denmark, 1995-2005.

Annals of Internal Medicine: 146: 87-95, 2007.13 Statens Serum Institut. HIV infection rates are higher abroad than in Denmark. 7 November2013. Available at: http://www.ssi.dk/English/News/News/2013/2013 - 11 - EPI-NEWS 44 HIV2012.aspx 14 HIV Justice Network. Switzerland: New Law on Epidemics only criminalising intentionaltransmission passed in lower house, March 9, 2012, available at:http://www.hivjustice.net/news/switzerland-new-law-on-epidemics-only-criminalising-intentional-transmission-passed-in-lower-house 15 HIV Justice Network. Iowa Governor Terry Branstad signs ‘Contagious or InfectiousDisease Transmission Act’, replacing draconian, unscientific HIV-specific law, May 31, 2014,available at: http://www.hivjustice.net/storify/iowa-governor-terry-branstad-signs-contagious-or-infectious-disease-transmission-act-replacing-draconian-unscientific-hiv-specific-law 16 Law Institute Victoria. Announcement to amend s 19A of the Crimes Act 1958 (Vic),

September 1, 2014, available at: http://www.liv.asn.au/For-Lawyers/Sections-Groups- Associations/Practice-Sections/Criminal-Law/Submissions/Announcement-to-amend-s-19A-of-the-Crimes-Act-1958?glist=0&rep=1&sdiag=0


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CPS Legal Guidance on Ancillary Orders makes clear that it is unlikely that itwill ever be appropriate to apply a SOPO because they are to protect thepublic from future sexual offending and the transmission offence is not asexual offence. Furthermore, in relation to ASBOs, they cannot be applied topeople who are co-habiting (‘not of the same household’).

In addition, as stated in my response to Q35, consistent with UNAIDSguidance, I do not support any legal requirement to disclose one’s HIV/STIstatus or any penalty for not doing so.

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HIV Justice Network Law Commission OAPA 1861 Scoping Consultation Response