Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Thursday, 11 October 2012

On the (de-)criminalization of HIV transmission again

It occurs to me that the conclusion to the last post was rather rushed - a bit too oblique, if you like - and that I could have spelled out my concerns in more detail. I am also prompted to do this because I have been shown some further research on prosecutions for HIV transmission in Canada which underlines some of the points I was wanting to make in the post.

Criminalization or decriminalization in this area is always also about the distribution of responsibilities. Does the state take responsibilty for managing public health in this area, or does it pass the responsibility on to others - or does it share the responsibilities in an appropriate way? The use of the law in this area requires us to reflect on what it is that we seek to achieve through the use of the criminal law - the public health dimension, if you like. It is not only a matter of a harm being done to someone (the transmission of HIV), but also of whether the use of the criminal law is the best means of harm reduction. And in a situation where (at least) two people are involved, it is not always going to be easy to point the finger of blame at one of them. Who should take responsibilty for disclosure? Who is expected to take precautions (and who will be prosecuted for the failure to take precautions)? This also relates to our perception of who the victim is in a given situation, and who can be viewed as a perpetrator or which group of people represent a threat.

Answers to these kind of questions are given some content by research which has been carried out on who is prosecuted for the crime of HIV transmission in Canada and for what kind of sexual encounters. There is a lot of fascinating material in the report, but I want to pull out two key findings. These are first that in a high percentage of the prosecutions (40%) no actual HIV transmission had taken place - that is to say that the person was being prosecuted for an aggravated sexual offence where what was at issue was the risk of serous bodily harm. Second, the majority of those prosecuted were heterosexual men (around 70%) - which is to say those who were prosecuted on the basis of a heterosexual encounter - and in the period since 2004 the majority of these were black. In seeking to explain this last finding, the authors of the report make two observations. The first is that this might reflect differences in understandings of and respones to HIV risk between the gay and heterosexual communities. And second, they suggest that heterosexual women, and especially white heterosexual women, who are the complainants in many of these cases better fit police and prosecution conceptions of victims - and so the cases are more likely to be taken up.

So, if we go back to the discussion of the case, can we draw any further conclusion. It is arguable that the Court was trying to address the first point - decriminalising non-disclosure where there is no significant risk of transmission. But the real risk here is that this aim will be undermined by the lack of attention to the context in which sexual encounters take place and the failure to specify clearly where responsibilities lie. In fact it is arguable that the finding of the case - restoring the convictions against a black Sudanese immigrant where the female complainants testified about their fears - in fact reinforces the prejudices in this area.

The way forward must surely be shared responsibility for the disclosure and for the consequences of non-disclosure. Where no transmission takes place it is hard to see what is achieved through criminal prosecution - other than the reinforcement of prejudice. And even where there is transmission it is hard to see that the criminal law has a role to play, except in cases where this is deliberate and some overt deception or fraud has been used.

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