BCPWA police complaint dismissed

The Vancouver Police Department (VPD) dismissed a complaint, Dec 13, filed by the British Columbia Persons with AIDS Society (BCPWA) that alleged the VPD unnecessarily publicized a man’s HIV-positive status in a Mar 30, 2006 press release.

The man was charged in February of 2006 with two counts of aggravated sexual assault for allegedly engaging in unprotected sex with two Vancouver men on different occasions after denying to them that he was HIV-positive.

Shortly after the accused was charged, the VPD issued a press release about him under the banner “Wanted sex offender,” asking for help determining his whereabouts. When the man found out the police were looking for him, he drove from his new home in Toronto to Vancouver to turn himself in. But the VPD then released a second press release, once again publicizing the man’s HIV-positive status, which read in part: “Investigators are interested in speaking with anyone who can provide further information on [the complainant].”

The mainstream press picked up the story and ran the man’s name and picture the following day. Xtra West has chosen not to identify him because his accusers’ identities are protected by a publication ban.

The BCPWA complaint urged the Vancouver Police Board to establish a firm policy preventing the VPD from publishing any individual’s HIV-positive status unless there is unambiguous evidence of ongoing reckless personal behaviour that endangers public safety.

“It is simply unreasonable to contend that alerting the general public of Vancouver to [the man’s] HIV-positive status served any public safety purpose whatsoever,” read the complaint. “And if no public safety function was served, there can be no justification for the disclosure.”

“If they were worried about others being exposed, there are public health nurses that do partner tracking,” BCPWA vice-chair Glyn Townson told Xtra West after the Jul 19 police board meeting.

“Our issue is that that process didn’t take place. We have systems in place to handle these kinds of situations. Releasing his status turns it into criminal issue rather than a health issue. It blows it out of proportion when you get sex offender messages coming on TV.”

Townson acknowledges that it may be appropriate for the media to publicize someone’s HIV status in some cases.

“Privacy and public good have to be weighed,” he acknowledges. “We’re not saying that public disclosure isn’t sometimes necessary if there have been egregious crimes committed, but that simply isn’t the case here.”

In response to the complaint, the police board instructed the VPD to conduct a policy review on the public dissemination of information regarding an individual’s health status and report back. The report, dismissing the complaint, was finally presented at the Dec 13 police board meeting.

“The complaint that was received misstated effectively the purpose for which the information was released,” VPD planning director Volker Helmuth told the board. “The complaint stated that the information about the person’s health status was issued as a public warning to others and that’s not, in fact, what occurred.”

But Helmuth’s written report to the board reads: “Investigators suspected that the accused could also have victimized others, and sought to identify such further victims or witnesses. The accused’s [alleged] act of failing to disclose his HIV status, before having unprotected sex, was the essential element of the [alleged] offence… If the disclosure had not been made, others who had consensual unprotected sex with the accused would not have been able to identify themselves as [alleged] victims.”

“As a result, we don’t recommend any changes to our policy or procedures,” Helmuth told the board. “Any release of this sort, whether it’s actually a public warning or, as in this case, seeking further evidence, goes through our information and privacy office. Our coordinator reviews those and consults regularly with our media unit. In this instance, the basis for the release of information wasn’t to warn the public. It was an investigative tool.”

The police board voted unanimously to accept Helmuth’s recommendation and to dismiss the BCPWA complaint.

Townson says, to him, the outcome “isn’t a really huge surprise.”

“We worded our complaint very specifically,” he told Xtra West Dec 13. “Releasing HIV status information should be a public health issue. The VPD made it clear that, to them, it is not a public health issue. They were simply trying to gather more evidence that would not affect the case they were working on. They would have to put another case in place. It’s a fishing expedition. We know that.

“I don’t see anything from this report that indicates they have any standards in place to see what would constitute public good,” Townson continued. “Until we have that, if they won’t do it, we’ll find someone with more authority.”

Townson says BCPWA now plans to take its complaint to the BC Privacy Commissioner.

“There is so much stigma associated with being HIV-positive in this province now,” he says. “This isn’t the only place it’s happening. Since we filed this complaint, I’ve received e-mails from people in Kingston, Ontario saying they’ve had similar experiences out there. So we may need to even take this to the federal level to try and get some kind of protection around these things.”

And ultimately Townson is right. The root of, and solution to, the criminalization of HIV lies in Ottawa; not with the VPD.

Rightly or wrongly, the VPD has technically acted within the bounds of the law in investigating and pursuing charges against this man.

In the Cuerrier (1998) and Williams (2003) cases, The Supreme Court of Canada ruled that a person who fails to disclose to his sex partners that he has tested HIV-positive may be charged with attempted aggravated assault, even if his partner was already pos when they had unprotected sex.

The court even raised the possibility, but hasn’t yet made a solid ruling, that a pos person might be convicted even if he hasn’t actually tested positive and isn’t certain of his own HIV status.

All the prosecution would have to show is that a person acted “recklessly.” Anyone who might have any “significant risk” of being HIV-positive, the court said, might be charged with attempted aggravated assault if he fails to disclose that there is even a possibility that he may be HIV-positive.

The courts have yet to define “recklessly” or “significant risk.”