Yes. I think it's a good question.
Let me draw your attention to the guidance that UNAIDS, the joint UN program on HIV/AIDS, put out in 2013 that went through, in fairly exhaustive detail, the ethical, medical and legal considerations about the use of the criminal law. I think it is helpful to look at that when we start talking about concepts of negligence or recklessness because those are very fuzzy concepts. Within negligence and recklessness there is a broad interpretation of what rises to that level of moral or mental culpability, and there is a narrower interpretation. Perhaps you want to say, well, what about reckless conduct? Then we have to get into a discussion about when conduct is reckless and when it is reckless enough that it should arguably attract criminal liability.
You will see, for example, if you look at some of the guidance to prosecutors in other jurisdictions, like in the U.K., that it actually gets into detail, some of which is starting to be reflected in prosecutorial directives here. In some circumstances, for example, we should not consider conduct to be reckless. For example, if someone has not disclosed that he or she has HIV to a sexual partner but has used a condom, is that reckless behaviour? I would submit not, particularly given, as the scientists have pointed out, an intact condom correctly used is 100% effective at blocking the spread of HIV. In such a circumstance to treat such a person equivalent in law to a violent rapist seems to me a vast overreach in the criminal law.
I think there is a grey area and we need to get into specifics about what behaviour specifically.... As you've heard from some of the witnesses, people living with HIV still live with this fear and this uncertainty about when the disclosure is actually required. When the risks are so great of falling on the wrong side of that line, i.e., you become a sex offender for life with all that follows, then I think we owe people some clarity in the law. It is a very basic principle in the criminal law, as Professor Kirkup has articulated.