TRANSMISSION OF HIV AND THE CRIMINAL LAW: EXAMINING THE IMPACT OF PRE-EXPOSURE PROPHYLAXIS AND TREATMENT-AS-PREVENTION.

• Date: 01 April 2020
• Author: Carter, David J.

Contents I Introduction II HIV Transmission-Related Criminal Offences: Assaults, Endangerment and HIV-Specific Statutory Offences A Assault B Endangerment C Disclosure and Reasonable Precautions III New Forms of HIV Transmission Prevention and Treatment and Their Legal Mechanism of Action A Pre-Exposure Prophylaxis ('PrEP') B Treatment-as-Prevention ('TasP') IV Redundancy of HIV-Related Criminal Offences? A Opportunities for Prosecution Will Be Reduced where PrEP and TasP Is Available and Used B The Legal Mechanics of PrEP and TasP 1 Australian Consideration of PrEP and TasP 2 International Consideration of PrEP and TasP C HIV Is No Longer a Grievous Bodily Disease D The Hope that PrEP and TasP Will Eliminate Criminal Prosecutions Is, at Present, Unlikely to Be Realised 1 Recent Prosecutorial History of HIV Transmission-Related Offences in Australia: A Profile at Odds with the Occurrence of HIV in the General Community 2 A Misalignment between the Prosecutorial Profile and the Current Targeting and Take-Up of PrEP and TasP V Implications and Reform VI Conclusion VII Appendix: Recent Australian HIV Transmission-Related Criminal Offences 2009-18 I INTRODUCTION

The history of the 'criminalisation of HIV' (1) extends to the identification of the virus. (2) Non-disclosure of HIV-positive status, engaging in behaviours that heighten the risk of transmission, and occasions of transmission itself have all been accepted as the basis of various criminal offences across at least 72 nations, (3) including common law jurisdictions such as Australia, Canada, the United States, and England and Wales. (4) Prosecution of those offences does not occur in large numbers; however, it does still occur regularly. (5) Further, those living with HIV remain subject to additional obligations created by public health law. Non-compliance with these obligations brings criminal liability and exposure to the criminal justice system through a referral and escalation process embedded in public health procedures. (6)

At least three decades of law reform has now firmly established a trend away from HIV-specific criminal offences and towards offences of general application that capture HIV transmission as a particular form of a more general class of harm. At the same time, public health efforts combined with advances in clinical treatment and prevention has, for those with access to these advances, seen the experience of living with HIV change radically. Onward transmission rates are now stable in places such as Australia, (7) and, when properly managed, HIV is a chronic condition with greatly increased life expectancy. (8)

Recently, two new transmission prevention practices have entered this relatively well-settled criminal legal context, marking a new era of HIV prevention: 'treatment-as-prevention' ('TasP') and 'pre-exposure prophylaxis' ('PrEP'). TasP relies on viral suppression by use of antiretroviral therapy ('ART') to the point where the virus is said to be 'undetectable'. (9) Medical consensus is that for those living with HIV, achieving and maintaining an 'undetectable viral load' ('UVL') means that risk of onward transmission of the virus is reduced so significantly that it is 'negligible' (10) and 'effectively zero'. (11) PrEP, on the other hand, is a biomedical prevention practice focused on those who are at risk of HIV transmission. Those utilising PrEP take a preventative regimen of ART which has thus far proven to effectively protect against HIV transmission. (12) Where utilised, each approach reduces the risk of transmission to a level described by the Australian Medical Consensus Statement as a 'negligible possibility', (13) and by the International Expert Consensus Statement on the science of HIV in the context of criminal law as 'suggesting that it is likely that PrEP is more than 95% effective'. (14) Together, these two technologies have introduced greatly more effective methods for preventing the transmission of HIV, thus bringing with them the potential to reshape criminal legal engagement with the virus and its transmission.

In this article, I show that the practices of TasP, PrEP and the general gains in quality of life and life expectancy for those living with HIV present the potential to radically reduce, even eliminate, the incidence of HIV transmission-related criminal prosecutions. I also demonstrate how engagement in PrEP and TasP should figure in assessment of the potential prosecution and in the conduct of criminal trials. Finally, I draw attention to some barriers to achieving this reduction in prosecutions, brought about by the misalignment between those populations taking up these new biomedical treatment and prevention practices, and those who have been historically prosecuted for HIV transmission-related criminal offences in Australia. This misalignment renders it unlikely that a radical downward shift in criminal prosecutions for HIV transmission-related offences will be achieved.

To make these arguments, I engage with recent advances in HIV treatment and control practices, including TasP and PrEP, dwelling particularly on the judicial consideration and role they have played in Australian and foreign legal processes. Drawing on that work, I then discuss the major ramifications of TasP and PrEP for criminal prosecution. To begin, however, I provide an overview of applicable criminal offences and recent prosecutorial experience in Australia and elsewhere of the key HIV transmission-related offences: namely assault, endangerment, and criminal offences that emanate from public health law.

II HIV TRANSMISSION-RELATED CRIMINAL OFFENCES: ASSAULTS, ENDANGERMENT AND HIV-SPECIFIC STATUTORY OFFENCES

Criminal legal responses to infectious disease and its transmission have varied across time and have significantly influenced the reception of, and engagement with, transmissible infection. (15) In the common law world, significant moments of legal engagement include R v Clarence ('Clarence') (16) and the 19th century Contagious Diseases Acts, (17) both of which radically shaped the construction and response to infectious disease, including HIV, in law and medicine. (18)

Australian HIV-related criminal provisions were influenced by the tradition of legal engagement with infectious disease stemming from Clarence; however, they were established by statute rather than through the evolution of the common law as was the case in England and Wales. (19) Today, HIV-related criminal offences are present in Australian jurisdictions across three general classes of offence: assault offences, endangerment offences, and HIV-specific statutory offences that emanate from public health law. (20) Prosecution of assault and endangerment offences is thought to have occurred in all eight of Australia's criminal jurisdictions, (21) leading to a total of over 30 prosecutions. (22) No data on the prosecution of criminal offences created by public health law is publicly accessible.

A Assault

Assaults form the core of contemporary HIV transmission-related criminal offences. These offences rely on HIV transmission having occurred, and on the event of transmission being regarded at law as a harm sufficient to be regarded as an assault. Two forms of assault apply to HIV transmission: the first category is HIV-specific assault charges; the second is assault offences of general application where HIV transmission is regarded as a relevant form of harm. I expand on each in the paragraphs that follow.

Early in the history of criminalisation, a series of criminal offences was constructed by legislatures to target HIV transmission directly. This was achieved by enacting criminal offences that explicitly identified HIV transmission --and only HIV transmission--as an actus reus element of an offence. In New South Wales, for example, the offence of 'causing a grievous bodily disease' (23) was enacted in 1990. (24) This offence brought with it a maximum penalty of 25 years' imprisonment for a person who maliciously caused another person to contract a grievous bodily disease or who attempted to do so. (25) HIV transmission-specific offences existed in other jurisdictions, including Victoria. Like the offence in New South Wales, the Victorian HIV transmission-specific offence of 'intentionally causing a very serious disease' carried with it a maximum penalty of 25 years' imprisonment and specifically targeted HIV transmission, this time by narrowly and explicitly defining HIV as the only 'very serious disease' to which this offence applied in the text of the statute itself. (26)

From their enactment, opposition to these HIV-specific criminal offences was widespread. Central to this opposition were concerns that HIV-specific offences created and sustained stigma surrounding HIV, reduced the effectiveness of mutual responsibility for sexual health, created significant disincentives for those with HIV to be open with health practitioners and other service providers in relation to their sexual practices and, finally, that HIV itself did not represent a form of harm sufficient or suitable to justify an assault charge. (27)

Over time, arguments for the abolition of HIV-specific criminal offences were broadly successful. Successive Australian jurisdictions pursued law reform that removed or modified HIV-specific criminal offences. (28) The Victorian offence of 'intentionally causing a very serious disease' was the last HIV-specific criminal offence in Australia, repealed mid-2015. (29)

The reform of HIV-specific criminal offences was not the end of potential or actual criminal legal engagement with HIV transmission. Rather, the approach now taken by all jurisdictions is to utilise an assault offence of general application, by characterising HIV as a bodily disease, the transmission of which is said to constitute a sufficient basis for assault. (30) This is said to reflect current 'best practice' in this area. (31) This leaves HIV transmission as the basis...