HIV Disclosure and Sexual Offences Prevention Orders

When someone is convicted of an offence of recklessly transmitting HIV, courts appear to be increasingly minded to impose - in addition to the sentence for the offence - a Sexual Offences Prevention Order (SOPO) or - most recently an ASBO (Anti-Social Behaviour Order). 

The most recent case (an ASBO) was that of  Nkosinati Mabanda, who was sentenced to four years imprisonment in July 2011, with a recommendation for deportation on his release.  Other cases include those of Derek Hornett (2009) and Nicholas Richards (2010).

In each of these cases the SOPO /ASBO included a requirement that the defendant must disclose his HIV status to partners before having sex with them.

The relevant legislative provision for SOPOS is Section 104 of the Sexual Offences Act 2003, which provides as follows: 

"(1) A court may make an order under this section in respect of a person (“the defendant”) where any of subsections (2) to (4) applies to the defendant and—

(a) where subsection (4) applies, it is satisfied that the defendant’s behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;

(b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."

The relevant provision for ASBOs is Section 1 of the Crime and Disorder Act 1998 (as amended).  This states as follows:

An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely—

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect relevant persons from further anti-social acts by him.

A SOPO can, therefore, only be imposed where the court is satisfied that it is necessary to protect others from serious sexual harm, whereas an ASBO refers instead to relevant persons and further anti-social acts.

The question I ask here is simply this.  Does an HIV disclosure requirement do this?   I will concentrate here on SOPOs.

Some context:

• There is no general legal obligation to disclose one's HIV status to others, even those with whom one is about to have sex (i.e. non-disclosure is not a crime - unlike some jurisdictions, such as Canada).
• There is no evidence of which I am aware that indicates a positive correlation between disclosure and subsequent safer sex.  There is, however, evidence to contrary - that dislcosure is correlated with subsequent riskier sex (though the evidence for this is complex (see below).
• Consent by a partner to sex which carries the risk of transmission is a defence to a charge of reckless transmission (R v Dica).
• That consent must be a conscious or "willing" consent for it to be operative as a defence, and this will normally require disclosure of HIV status by the defendant (R v Konzani).  It is however possible that consent will exist where the complainant knew of the defendant's HIV status via a third party.

All this makes for a bit of a muddle, both jurisprudential and otherwise.  That muddle can be summarised as follows.

Disclosure is in almost all cases a pre-condition for the defence of consent. What does consent "do" legally?  It negates the liability of the defendant.  It negates the liability of the defendant NOT because he didn't have the requisite fault (he was still aware of the risk of causing bodily harm at the relevant time).  It negates liability because the law treats the partner's assumption of risk as determinative of whether it is, in some sense, just or fair to allocate responsibility for an adverse outcome (in this case HIV infection) on the defendant and to punish him for this. 

The SOPO that requires disclosure of HIV status on the part of the defendant reflects this idea, but in a perverse way.  Because it is imposed to prevent serious sexual harm, the thinking must be that no harm will be caused (or will at the very least be minimised) if the defendant discloses his status to a prospective sexual partner.  However, as stated above, there is no empirical evidence which correlates disclosure with safer sex.  If HIV is still considered a "harm", irrespective of whether consent is given to the risk of its transmission, then a SOPO requiring disclosure will not prevent it. 

What a SOPO can do is provide a partner with the opportunity to make an informed choice about risk-taking.  The only thing a disclosure requirement in a SOPO can actually do, therefore, is to prevent uninformed decisions by a defendant's prospective sexual partners.  It follows, I think, that to include an HIV disclosure requirement in a SOPO is wrong in principle and wrong in law.  It is not necessary to protect others from serious sexual harm.  It is not necessary because it is not a pre-condition to the practising of safer sex; it does not (in itself) protect others; and even if the requirement is obeyed it does not prevent a partner from the harm (which is the requirement's basic justification).

As an aside, it seems to me that there are other problems and questions. 

• Suppose a John is made subject to such a SOPO, and fails to disclose his HIV status to Jane.  Jane, however, knows that John is living with HIV because a third party told her.  They have sex and Jane is infected as a result.  John is still in breach of his SOPO, and the "harm" is not prevented.  How should the courts deal with the breach of the order?
• Suppose John is on effective anti-retroviral therapy and has an undetectable viral load.  There are no reported cases of transmission during sex where a person has an undetectable viral load.  John has sex with Jane without disclosing.  Jane is not infected.  John is still in breach of his SOPO.  To the extent that no "harm" has come to Jane, this is not the result of of a breach of the SOPO.
• Suppose John doesn't disclose but practises safer sex.  Jane is not infected.  Irrespective of the fact that John has acted responsibly and ensure the taking of precautions that we do know prevent onward transmission of HIV, he is still in breach of his SOPO. 
• And what consitutes "sex" for the purposes of disclosure so as not to breach a SOPO?  Only sex which carries the risk of transmission? All sexual activity? 

These scenarios illustrate, I think, strong grounds for arguing that the imposition of a non-disclosure requirement in a SOPO is, without more, disproportionate.  The Court of Appeal in R v Hancox  held, in the context of a Serious Crime Prevention Order, that orders of this kind must be proportionate.  I find it hard to see how a SOPO requiring disclosure - which cannot fulfill its purpose of preventing serious sexual harm and imposes a significant burden on the defendant - be proportionate.  This is not to say that disclosure to prospective partners is not important, nor that ethically it may be the responsible course of action.  I am simply suggesting that making it a legal requirement with serious consequences (including deprivation of liberty) for breach is highly problematic.

I should, finally, acknowledge that the evidence on the impact of disclosure on subsequent safer sex is - as stated above - complex.  Dr Catherine Dodds of Sigma Research has pointed out to me, quite rightly, that the likelihood of subsequent unsafe sex is greater in longer term relationships, and that many people do in fact indicate that they would not have sex with a person who did disclose an HIV diagnosis prior to a first sexual encounter.  On one level, this may provide a justification for those who approve of the approach being taken by the courts - on the basis that it reflects the importance people place on transparency.  On the other I am not sure that even if this is true it is a strong enough justification.  Put simply, even if disclosure does give potential partners this choice, it reinforces the notion that responsibility lies only with the person living with HIV, and that everyone else is entitled to assume that disclosure will be made.  SOPOs and ASBOs requiring disclosure reinforce through law this (to my mind) dangerous model of sexual responsibility and impose a burden that should be shared.  And it doesn't, I think, undermine the principal point I want to make here - that these orders can only, at best, provide a potential partner with a choice (a choice that they are also capable of making without disclosure). 

Comments

[Robert James]

Very interesting piece Matthew.

I have looked up a bit more on ASBOs and SOPOs. The CPS guidance on SOPOs for transmission cases specifically suggests the two things that have been used, orders for protected sex and/or disclosure.

The criminal procedure rules do have a small piece on behaviour orders (part 50) and SOPOs are excused a couple of administrative requirements but otherwise are the same as ASBOs and SCPOs (Serious Crime Prevention Orders). All behaviour orders though are for the situation where a court "requires someone to do, or not do, something" suggesting it is not simply to refrain from actions but to compel actions as well.

The main case law covering ASBOs seems to be Boness v R [2005] EWCA Crim 2395 (19 August 2005) which is at http://www.bailii.org/ew/cases/EWCA/Crim/2005/2395.html

Most relevant I think are paragraphs 46 and 47 about the need for the order to protect the community from harm rather than simply protecting "individuals victims" and enforcability but this looks like obiter and not ratio to me.

46 ...The forms of conduct listed on page 8 of the 2002 Home Office guide have a direct or indirect impact on the quality of life of people living in the community. They are different in character from offences of dishonesty committed in private against individual victims, distressing though such offences are to the victims...

47 ...In the absence of a system to warn all hotels, guesthouses or similar premises anywhere within the Greater London Area, there is no practical way of policing the order. The breach of the ASBO will occur at the same time as the commission of any further offence in a hotel, guesthouse or similar premises. The ASBO achieves nothing- if she is not to be deterred by the prospect of imprisonment for committing the offence, she is unlikely to be deterred by the prospect of being sentenced for breach of the ASBO...

There is CPS guidance on ASBOs - and SCPOs but not SOPOs - which may also be helpful in opposing or pushing for clarification of these types of orders http://www.cps.gov.uk/legal/a_to_c/anti_social_behaviour_guidance/#Form

'The Form and Content of the Order'

The terms of the order must be reasonable and proportionate, realistic and practical and must be worded in such a way to make it easy to determine and prosecute a breach. [R v Boness [2005] EWCA Crim 2395] Experience has shown that the use of simple language can assist. For example consider not to be with .. rather than not to associate with..
The terms of the order must be enforceable in that a breach can be readily identified and capable of being proved.

I think the disclosure SOPO could be arguable on enforceability grounds and noting the example in Boness the inability to warn specific individuals when a more general "must not enter any hotel" order was ruled disproportionate.

I wonder if this offence and SOPO are examples of a general rule about consent / autonomy and rational behaviour where there is an anomaly about harming people. Consent is the vital principle for the court and consent to risk perfectly normal (and inevitable in life) but consent is only to the risk of harm and not consent to definite harm. Consent to definite harm being seen as a thing no rational person would do and so even when it happens as in R v Brown it is structured in a way to suggest the person consenting to harm is in need of protection and would not be consenting if they were being self-confident enough. So consent to 'deliberate transmission' is no defence as it has the implication of certain to cause harm.

The oddness now is therefore the necessity of knowledge prior to sex on behalf of the complainant compared to crossing the street, accepting a lift from a person without knowing their driving history, etc and I think this could be part of a wider shift in ideas of protection - all those "this product may contain nuts" labels. They are avoidance of litigation for companies as well but also have a premise that if you are allergic to nuts you will use this info to act sensibly and not eat the product.

HIV is then leading the way as the case law is new and other areas of law around harm may follow. An ASBOs requiring disclosure of previous offences may therefore become more common and seen as sensible by a court. One example could be a person convicted of assault on hospital staff having an ASBO of disclosure that "You must tell hospital staff that you have previously assaulted a nurse" with the understanding that a hospital would then make the rational decision of having security in the room when the person is treated. The idea of knowledge being the method to enforce/promote behaviour that reduces harm in society because we are all rational actors who would never make a bad choice.

[Matthew Weait]

Robert - excellent post, with lots of very interesting and provocative ideas.

I think you are absolutely on the money about what these orders reflect, and that this is something deeper and more systemic about law and its use in constructing / constraining / managing social interaction.

They seem to me also to be in tune with wider socio-legal developments in "risk society", not so different at one level from the move towards whole body X-rays in airports or the construction of PLHIV as being infected with biological weaponry (as the Michigan case suggested).

I guess that taken together there is a way of reading these developments as emblematic / symptomatic of the hyper-individualism that marks neo-Liberal society (or, paradoxically, the "Big Society" that demands that we take responsibility for others, rather than being supported through law and other social institutions to develop bonds of properly mutual care and support).