Some Reflections on Norway’s Law Commission Report on Criminal Law and the Transmission of Disease (based on the English Summary – which can be found here: http://www.regjeringen.no/nb/dep/hod/dok/nouer/2012/nou-2012-17/18.html?id=705100)
The quotations are from the Report, the passages after each are initial observations.
“Many declarations and statements have a global objective and do not necessarily reflect the great cultural differences between regions and states. States have quite a free rein in terms of the importance they attach to «soft law» in their assessments of what is compatible with international human rights obligations. To a large extent, therefore, they will be able to take account of national factors, provided their interpretation is consistent with the convention texts with comments by the treaty bodies and ECHR jurisprudence.”
One might counter this by saying that the reason that such declarations and statements have a global objective is because they address global phenomena and are concerned with fundamental questions and universal values. It is arguably no answer to say that because there exist particular cultural practices or differences in a state or a region they should be respected, or are to be protected, on that basis alone. To observe or acknowledge such difference is not, nor can be, a sufficient justification for their continuation. In some areas (such as female genital mutilation), international law (of the “hard” kind) may be proscriptive, and the Report recognises that there is an obligation on the part of states to honour this; but it is a conservative, cautious and precautionary approach to resist or deny the applicability or value of “soft” law simply because failing to honour it has no formal consequences. Of course, there is a strong and pervasive claim throughout the Report that Norway is a fundamentally conservative and cautious society (viz, especially, the comments that “responsible” sexuality (rather than the “passionate” kind) is the ideal). To the extent that this is true (and / or is something of which Norway is proud and does not wish to change through progressive measures in line with international expert opinion), then the findings of the Report are, at least, internally consistent.
“Foreseeability is an important aspect, and precisely this aspect will be easier to safeguard by means of special provisions in the field than through general penal provisions that protect life and health. In a special provision, the further conditions for a criminal penalty, including the standard of guilt, the importance of consent, the penalty level, etc. can be regulated in a way that is especially adapted to this type of case. States must be given a margin of discretion in formulating their criminal law and individual penal provisions, in which the legal tradition and other factors in the country may also be of significance.”
The Report is right to assert that foreseeability is an important element of fair and just law. People need to know what the law is in order to be able to obey it, to know what their obligations are and so on. However, the Report appears to be suggesting that ensuring specificity in law is, in some sense, a justification for a particular law. That is not necessarily the case. First, not having a law (decriminalisation) is as clear – if not clearer – than having one. Second, if one is wedded to continued criminalisation of the transmission of serious disease then it is not necessarily the case that the use of general law is problematic or less foreseeable. It is suggested that special adaptation is possible where there is specificity in offence type (as far as matters of consent etc are concerned); and this may be true. But it is also the case that by establishing disease transmission as a special type of case there is the risk of affirming people who are living with a disease – and we can be under no doubt that despite it not mentioning HIV this will be THE disease – are under obligations different from, and greater than, the general population. All people, including PLHIV, may legitimately be punished for recklessly breaking their victim’s nose; but only PLHIV (or living with a transmissible disease) can be liable for this exceptional crime. Whatever the report asserts, the specificity of the provision, contrary to UNIADS guidance, makes HIV a special case and PLHIV an especially suspect community.
“There seems to be little evidence to support some of the theories regarding the impacts of criminal legislation on infection transmission and exposure on which the recommendations of UNAIDS are based. Furthermore, the points of view are formulated with a global objective. Some UNAIDS work in the field is particularly focused on high-income countries, but here too significant variations will be seen in the different countries in terms of legal traditions, the application of criminal law and the level of penalties, as well as cultural factors related to confidence in the legal system and a sense of responsibility in human interaction, etc.”
Three points here. First, it is true that there is relatively little evidence about the impact of criminalisation; but there is not no evidence. In particular, and importantly, just as there is relatively little evidence of its negative impact, so there is little or no evidence that criminalisation does any good. If, as seems to be the case, the Report does not propose decriminalisation in part because of the lack of evidence, it has reached that conclusion – to this extent at least – on the basis that evidence is important in criminalisation debates. However, this is inconsistent with the emphasis on values, culture and tradition as a justification for continued criminalisation. Second, UNAIDS focuses on high-income countries, because criminalisation is (largely) a high-income country pre-occupation. High-income countries can afford to, and do, criminalise because PLHIV are frequently from marginalised, poorer and otherwise excluded groups. Criminalising HIV in Norway (and Sweden, Denmark etc) is possible and tolerated because it doesn’t impact on the dominant, wealthy, majority as a group. Poorer countries, such as those in sub-Saharan Africa where HIV is endemic, may have criminal laws against HIV transmission and exposure but they enforce them less often (there are more pressing things to worry about), and – it should be emphasised – those laws are either the result of a rich country colonial heritage or exports (such as the N’Djamena Model Law). Third, the final phrase in this paragraph is rather offensive, to the extent it implies, even if inadvertently, that responsibility in intimate sexual relationships in high-income countries is greater.
“The ideology of gender equality plays a pivotal role in Norwegian society, and Norway is characterised by a relatively high tolerance for sexuality and sexual behaviours in population groups who have traditionally held subordinate positions. However, this does not mean that sexuality is not subject to restrictions and social and cultural constraints. A belief that culturally-determined aspects of human behaviour are in fact «natural» in a biological sense has implications for sub-groups of the population who, for various reasons, must or prefer to adopt a behaviour that differs from that of the heterosexual majority. Sexual standards are social constructs, and those who do not conform to these standards risk becoming social outcasts. If large sub-groups of the population were to break with existing norms and rules of society, the norms can be changed precisely because they are social constructs. In Norway, there is a relatively high degree of openness as regards sexuality, yet we nonetheless have a somewhat ambivalent relationship to sexuality. Intercourse that is legitimised by love and affection is regarded as an expression of «good sexuality», while sex solely for the sake of pleasure is not regarded very highly.”
Even if this is true, the emboldened text is an extraordinary statement. If “sub-groups” (Gay? PLHIV?) risk becoming “outcasts”, then this is because dominant social groups contruct them as such, not because there is anything immanently “outcast” about them. Was the Commission aware of the extensive literature on the social model of disability I wonder? There is, here, an extraordinary descriptive claim about the normal / heteronormative, as well as a claim about what “good” sexuality consists in and an apparent fear that those who practise bad or non-normative sexuality will in some sense “infect” the majority.
“All the Nordic countries are often seen as having relatively liberal attitudes towards sexuality. In this cultural context, it is the responsible, and not the passionate, sexuality that is socially accepted and idealised. A consequence of this is that unless pregnancy is planned and wanted, individuals are expected to conduct themselves like responsible citizens and use contraception during intercourse. The use of contraception is not socially stigmatised, and is considered to be a shared responsibility. For most young people, it is natural to see themselves and their partners as fertile individuals. For most heterosexual couples, therefore, it is natural to make contraception an integral part of their sexual behaviour. As far as protection against infection is concerned, the situation is considerably more complicated. People seldom base their behaviour on – or accept as natural – the assumption that they themselves or their partners may be carriers of sexually transmitted diseases. Basing their behaviour in a sexual context on such an assumption will in all likelihood be perceived by their partner as a sign of being unnaturally suspicious.”
It is difficult, without access to the full Report, to know whether the descriptive claim made in the second sentence here is based on the views of the Commission members (not, perhaps, representative of average Norwegians?), on evidence presented to them, or on scientific emprirical research. One would hope for the latter, given the extent to which the Report places emphasis on facts and evidence as the basis for justifying continued criminalisation; but one suspects not. Even if it is true (though grand generalising claims such as this are always problematic), it is important to recognise that law has a strong constitutive function of what is accepted and idealised in societies. Law does not simply reflect dominant views, or culture, or tradition; it refracts it, and it contributes to it. If contraception is not stigmatised in Norway it is, in part, because it is legal to obtain and use contraception. The decision of the Commission to recommend maintaining the criminalisation of non-intentional transmission and exposure is, now, part of – and a significant contributor to – the continuing history of exceptional treatment of PLHIV and others living with serious transmissible disease. It is somewhat naïve, as this statement suggests, to claim that the Report is merely reflecting what the views “out there” are; it is an important element in what will be “out there” from now on. If, as the statement continues, people do not assume that their partners are carriers of STIs, this is in part because the law entitles them so to assume. The 2008 FAFO study (http://www.fafo.no/pub/rapp/20086/20086.pdf) showed, among other things, that one-third of Norwegians would not let a PLHIV look after their child/children (p 40), and 13% thought you could catch HIV from sharing a glass (p 29). When there is such ignorance and ill-informed discrimination about HIV in the general population, it is perhaps little wonder that the attitudes described here prevail. The Commission could, with some imagination, have contributed to affirming the importance and value of shared responsibility in sexual relationships generally on the basis that sexual infections are a normal (if undesirable) part of being human. But it didn’t; and that’s a lost opportunity.
“Being in a steady relationship is one reason for assessing as low the risk of being infected with a sexually transmitted disease. Being in a committed relationship generates a sense of security, and this security is linked to having faith in and trusting one’s partner. As a result, people who are in committed relationships test themselves less often for HIV and chlamydia. In our Nordic culture, the responsible, and not the passionate, form of sexuality is the ideal. [1] In the course of many years of family planning work, for instance, we have developed a rational, systematic way of dealing with our sexuality. In this cultural setting, it is considered legitimate to impose a responsibility on sexual actors for their actions, and we accept this responsibility. In a culture of passion, this is meaningless. [2] In our Norwegian and Nordic culture, it is accepted that persons who are HIVpositive have sex, but have (a special) responsibility not to infect other persons. Because we accept this premise, a law will also be accepted and an effort will be made to comply with that law by individuals from our culture who could transmit infection. The situation may differ somewhat in the case of infectious persons from other cultures.” (My enumeration and emphasis)
With respect to the first emboldened statement I would ask “Who, in Norway, is economically, socially and otherwise treated as responsible for the conception of a child (and any child that is born as the result of conception) (a) when contraception is not used and (b) if a woman lies about being on the pill to the man who is the biological father?”. Would the woman, in the second example, be WHOLLY responsible for the child because she lied or withheld the truth? With respect to the second emboldened statement I find myself almost speechless. It may be that the Commission wants to acknowledge cultural difference; but this is a very infelicitous way of doing so. How long, one wants to ask, must a non-Norwegian live in Norway before an assumption is made that s/he or he will respect the law of the country in which s/he has come to live? Or are they to be characterised as in some sense savage and uncivilised merely by virtue of their origin?
“The Commission is of the opinion that the Communicable Disease Control Act and the Public Health Act are key to safeguarding public health, supplemented by the non-judicial instruments that are also of pivotal importance. These instruments are of far greater importance than penal provisions for protecting the population against serious communicable diseases. However, Norway and several other countries have a tradition whereby infection transmission and exposure can be prosecuted, on the basis of penal provisions in the general criminal legislation which are intended to protect both public health and individuals.”
It is welcome that the Commission recognises the importance of non-criminal legislation in safeguarding public health. There is, however, a problem with the mixed messages this send out. On the one hand the state is articulating, properly, an approach to health and wellbeing that uses facilitative and empowering mechanisms (for the good people) and criminal law (for the bad). Where those who are defined as bad include (as is recommended by in the Report) those who merely expose others to the risk of transmission and those who fail to establish consent in front of a medical professional – see below – the line between public health logic and criminal justice logic is unhelpfully blurred. Criminal law, as the last resort, to be deployed only in the most egregious cases is – in Norway presently, and under the proposals – seen as appropriate in a far wider range than expert opinion and international guidance recommends. The Commission is, I would argue, explicit about this blurring when it suggests that exposure liability “will” change behaviour. Criminal law is appropriately used, in limited circumstances, to censure wrongdoing after the event. There is no evidence that it modifies behaviour. The same is not the case for public health measures, whether or not supported and affirmed through legal provisions, that incentivise health-seeking behaviour.
“… the Commission’s majority – 11 out of 12 members – are of the opinion that the circumstances in a number of cases, including many of the cases adjudicated under section 155 of the 1902 Penal Code, are such that the infected party has acted in such a blameworthy manner as to make a criminal sanction both right and reasonable. This is particularly the case where the infected person has deliberately given erroneous or misleading information about his or her infection status, perhaps over a long period of time, thereby giving the other party no incentive to ensure protection against infection. This increases the subjective blameworthiness of the infected person, and thus the justification for punishment.”
If this is the Commission’s view, then one wonders why it has not recommended an offence of failing to disclose information, or lying when asked. The Report stresses elsewhere the importance of clarity, certainty and foreseeability in the law, and if it felt that criminalisation was especially justified in the kinds of cases it sets out here it had the opportunity to draft an offence that captured clearly this kind of wrongdoing.
“Of the majority’s 11 (out of 12) members, nine members emphasise that decriminalisation could be perceived as an indication that infecting other persons or exposing other persons to the risk of infection is no longer such a serious act. The growing number of persons recently infected with HIV could suggest that there is a view prevailing in certain circles that it is no longer as important to avoid HIV infection because medication can prevent HIV-positive persons from developing AIDS. The Commission’s majority finds that it would be ill-advised to reinforce this impression by completely decriminalising such acts or repealing the special penal provisions that govern the transmission of infection and exposure of another person to the risk of infection.”
Repealing prohibition laws criminalising the sale and enjoyment of alcohol did not, arguably, send out the message that people should act irresponsibly and get intoxicated at every opportunity. Rather, the repeal of these laws recognised that they were a coercive infringement on the right of people to enjoy alcohol responsibly. Decriminalising abortion reflects the rights of women as regards their reproductive autonomy – it does not send out the message that decisions about termination are something to be taken lightly. There is no evidence I know of that would suggest that decriminalising non-intentional HIV transmission and exposure would result in a massive increase in “irresponsibility” on the part of PLHIV. We do know, from extensive research, that HIV epidemics are driven primarily by the undiagnosed and untreated, not by those whom the law “catches”. Decriminalising would therefore have only a marginal impact on rates of new infections, and the implication in this paragraph 9which seems to be based on conjecture and moralism) does a disservice to the vast majority of highly responsible PLHIV.
“… The greater foreseeability that can be created by establishing a special penal provision is assumed to be very important to those concerned. A separate penal provision which clearly defines the circumstances that exempt the perpetrator from a criminal penalty will make it easier to foresee consequences, thereby making the state of the law easier to understand.”
“… In the Commission’s view, it could in theory be difficult to convict persons who have infected other persons or exposed other persons to the risk of infection, even in cases where the person concerned has behaved in a blameworthy, extremely indifferent or reckless manner. The standard of guilt under the ordinary provisions governing bodily harm is intent. A great deal of evidence will be required to prove subjective guilt in the form of intent to transmit infection, which would be a requirement for conviction whether the case involves the actual transmission of infection or the exposure of another person to the risk of infection.”
People do indeed need to know precisely where they stand, and a specific provision may assist in this. But the Commission is – by implication – saying that a special provision makes prosecuting easier, because using the general criminal law (with its pesky burden of proof, high standard of fault etc) makes criminalising hard. It should be hard – very hard.
"Of the Commission’s majority of 11 out of 12 members who consider that a separate penal provision relating to the transmission of infection should be maintained, a majority of nine members find that improperly exposing other persons to the risk of infection should be punishable even if no disease or harm has been inflicted on the aggrieved person. This should also be possible in cases other than those in which purposeful intent to transmit infection has been shown. The risk of infection and transmission of infection arise from the same type of acts. Only by ensuring that the penal provision also covers exposure of another person to the risk of infection will it promote a change in behaviour and thereby contribute to infection control. Whether the individual act that causes a risk of infection will lead to the other party being infected cannot be foreseen, even if the parties may to some extent know of factors of significance for the magnitude of the risk of infection.”
Apart from the jurisprudential arguments that this offends against principles of minimum criminalisation, this appears to be somewhat hypocritical when one considers reasoning elsewhere in the Report. Specifically, the Commission makes the point in a number of places that there is "little evidence" to support claims made (by UNAIDS and others) about the impact of criminalisation on transmission and exposure. Yes - if one's definition of evidence is quantitative science, longitudinal surveys etc. We still don't have enough evidence, and getting it (through funded research) would be very good and very helpful. However, to make that point as a justification for not decriminalising anything other than intentional transmission is a little bit rich when one focuses one focuses on the emboldened text is a claim, by the Commission, based not on evidence but on speculation. With the greatest respect, and irrespective of one’s views on this topic, you can’t have your cake and eat it. To refuse to countenance decriminalisation on the basis of a lack of empirical evidence of criminal law’s harmful impact, and (almost in the same breath) to justify continued criminalisation of the least justifiable form on the basis that it “will” (not may, or might) “promote a change in behaviour” when that is not grounded in anything other than surmise is lazy and logically unsustainable.
“The draft contains a provision to the effect that consent exempts a person from liability to a criminal penalty in the case of infection transmitted by sexual activity. In order for consent to have an exempting effect, such consent must be given in the presence of health care personnel in connection with infection control counselling. These formal requirements are intended to ensure that the consent given is informed and well-considered, and that the relevant facts relating to the granting of consent are established and that the consent is given after proper infection control counselling. There is no requirement of a special connection between the parties, as is the case under the provision adopted in the 2005 Penal Code.”
Many commentators were critical of the existing approach – which permitted consent to risk / transmission as a defence only in the context of spousal relationships. The Commission proposes dropping this – which is welcome – but in its place has recommended that consent be a defence where it is witnessed by a health care professional in the context of infection counselling. Honestly – this is like something out of Alice in Wonderland. It appears to be aimed at the sero-discordant couple (X and Y) where there has already been disclosure by X of her / his HIV positive status to Y (who is negative) and where – up to knocking on the doctor’s door – they have either had no sex, or protected sex, and want to have unprotected sex. So X has to ask Y to come to the clinic, where Y gets a good old lecture from a professional about the effects and consequences of HIV infection – no doubt in front of X (this is all very romantic and intimate, as you can see) – and Y persists (why on EARTH would s/he?) in saying that unprotected sex is that s/he wants and that she consents (sign on the dotted line) to that risk. Forget, for the moment, the possibility that X may have more than one partner concurrently (and may therefore need more than one visit – just imagine how that will go down), or that this in effect HIV-specific despite the generality of the proposed law (can you imagine X having this discussion or encouraging a partner if he were diagnosed with Chlamydia or gonorrhoea to come along for the consent chat?), this is the bureaucratic disciplinary state run wild. It’s almost beyond comment, it’s so ridiculous. Until, that is, we read that “In our Nordic culture, the responsible, and not the passionate, form of sexuality is the ideal”. You can’t get more responsible than going to the surgery before you are allowed to have sex of a kind you want with an informed partner without the risk of criminal charges.
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