Presentation Transcript

1. Advocating against the criminalization of HIV non-disclosure: An analysis of community-led, science-based criminal law reform in Ontario, Canada  Eric Mykhalovskiy, York University Ryan Peck, HIV & AIDS Legal Clinic Ontario Cecile Kazatchkine, Canadian HIV/AIDS Legal Network Jonathan Glenn Betteridge, Legal & Policy Consulting Tim McCaskell, Ontario Working Group on Criminal Law and HIV Exposure Eric Mykhalovskiy, Associate Professor, York University ericm@yorku.ca
2. Objectives To add to the critique of the criminalization of HIV exposure/transmission by encouraging discussion and analysis of the range of strategies local advocates have used to oppose criminalization and with what effect. Extend existing literature: Critique of public health impact of criminalization Prosecutorial Guidelines Restrict application to intentional successful transmission What other ways can we practically mount a challenge to criminalization and through what local strategies? What has worked? In what ways? What hasn’t? Why?
3. Focus Activities of the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) and partner organizations Science-based criminal law reform efforts Extending criminal law reform: The Think Twice Campaign
4. Canadian/Ontario Context Criminal law obligation: disclosure before sexual activities that pose a “significant risk of serious bodily harm.” (Cuerrier, 1998). Significant risk not fully clarified by Supreme Court Canada a world leader in criminalizing HIV non-disclosure. Since 1989 over 150 criminal cases of HIV non-disclosure. Majority of cases in province of Ontario. Reluctance to engage in discussion of the issue on part of senior government officials responsible for criminal law policy making MAG a closed shop in which senior bureaucrats (crown counsel and criminal law policy division) lead agenda and thinking on issue Sensationalist mainstream media coverage Supreme Court Decision expected in Fall 2012
5. Canadian/Ontario Context Toronto: Large well organized gay community in Toronto with deep political roots Large population of people living with HIV/AIDS Numerous AIDS service organizations with skills and some resources Canadian HIV/AIDS Legal Network HIV & AIDS Legal Clinic Ontario Ontario Working Group on Criminal Law and HIV Exposure (CLHE) established in 2007 to oppose expansive use of criminal law to address HIV non-disclosure Voluntary organization, no formal funding, people living with HIV/AIDS, interested individuals and representatives from AIDS service organizations.
6. Science-based Criminal law Reform CLHE and science-based criminal law reform draws upon, strategically deploys scientific discourse/research on HIV transmission risk critiques the vagueness and expansive interpretation of significant risk test seeks to create a stronger presence, in the criminal justice system, of scientific evidence on risks of sexual transmission of HIV and on HIV as chronic manageable disease. Key Elements Legal Defense Research Campaign for Prosecutorial Guidance Intervening in Appeal Courts Community Outreach and Media
7. Legal Defense Inspired by legal defense work of Right to Privacy Committee in early 1980s Meetings with veteran criminal lawyers, developing resources on science (Legal Network Resource Kit), identifying expert witnesses, establishing referral system to lawyers for new defendants Outcomes Improvement in legal defense (fewer pleas, stays, cases won) New, lasting relationships with criminal defense bar New perspectives on science and law (Goudge Inquiry)
8. Research bnnn Provided resources and focus for learning about salient features of criminalization of HIV non-disclosure Produced a strategic text: scientific review of literature on transmission risk Prosecutorial guidelines shaped thought and response to issue by problematizing science/law and through trend/ pattern data and research on a public health impact of criminalization
9. Prosecutorial Guidelines Campaign Urges MAG to establish a consultation process to establish prosecutorial guidance for criminal cases of alleged HIV non-disclosure A concrete steps to limit expansive application of criminal law in context of few strategic options Can shape decision making and activities of crown prosecutors (within context of prosecutorial discretion) Prosecutorial guidance provides overall philosophy, direction and priorities of the Attorney General, and instructions for carrying these out. Guidelines can: clarify public interest factors that guide prosecutions, ensure that decisions to investigate and prosecute are informed by current medical and scientific research and ensure that criminal complaints are handled in a non-discriminatory manner
10. Prosecutorial Guidelines Campaign Campaign elements Develop Q and A Develop call for prosecutorial guidelines Collect key organizational and individual signatories Website collecting signatures Letter-writing campaign Meetings with Ministry staff Widespread consultation with key stakeholders and preparation of recommendations for Crown Policy Manual (http://ontarioaidsnetwork.on.ca/clhe/wp-content/uploads/2011/11/CHLE-guidelines-report.pdf)
11. Prosecutorial Guidelines Campaign Impact Effective rallying point for community members with varying perspectives on criminalization Consultation: an excellent community development activity, extended and deepened relationships with multiple stakeholders, deepened analysis and understanding of distinction between violent sexual assault and non-disclosure. Forced a response from MAG: December 2010 Ontario’s Attorney General agreed to develop guidelines But still NO guidelines Guidelines not a panacea May not be feasible when: Little to no history of consultation between Ministry and public with respect to criminal law Little Ministry buy-in Ministry and HIV community and CLHE/other advocates hold fundamentally different positions on use of criminal law
12. Higher Court Interventions CLHE members participate in Interventions in provincial Court of Appeal cases and Supreme Court of Canada cases led by Legal Network and HALCO. Opportunity to influence how law is formulated Bright lines approach to significant risk test based on risk science, legal and policy considerations. No disclosure requirement when: Condoms are used Having oral sex When viral load is low or undetectable.
13. Overall Impact More effective legal defense Shift in popular discourse on criminalization among ASOs, people living with HIV, and some media Vancouver Sun “Editorial: HIV criminal law not the right approach” Positive impact on some judges’ understandings of HIV transmission risk and HIV as chronic manageable infection Successful in presenting our perspective to higher courts Extension of network and allies Still no prosecutorial guidelines
14. Overall Impact—Ministry response Crown Prosecutors and Ministry have responded to our efforts by taking a regressive, conservative stance Before higher courts they have argued to eliminate significant risk and require disclosure prior to all sex regardless of risk. Amounts to a criminalization of HIV-positive status Crowns continue to prosecute cases where no significant risk of transmission is present New advocacy responses are required
15. Political Lobbying/Direct Action CLHE lobbies Liberal Members of Provincial Parliament and organizes letter campaign to Minster of the Attorney General of Ontario that successfully demands that Ministry withdraw its Supreme Court Intervention. CLHE members organize a silent protest on June 25, the date the Ontario Court of Appeal hears two non-disclosure cases
16. Think Twice Campaign AIDS ACTION NOW/CLHE Moves beyond established criminal law reform strategies A social marketing campaign to decrease criminalization Combined with direct action Targets a range of individuals/stakeholders and asks them to consider the complexity and uncertainty of HIV criminalization, and the implications for their role in criminal prosecutions. Roll-out in stages focused on one stakeholder at a time Anticipate/response to upcoming Supreme Court decision
17. Think Twice Campaign