In this controversial case, Boone was acquitted of oral sex charges. Other charges are pending. Read our previous coverage of the Steven Boone case here which includes an interview with Boone himself.
Dr Mark Tyndall (below right) is head of infectious diseases at the University of Ottawa. He was extensively quoted in this article Boone trial major setback for HIV prevention, expert says from the Ottawa Citizen.
Bob Leahy: Hi Mark I wanted to ask you about the Steven Boone case in particular and then ask you about its impact on HIV criminalization issues. I’m wondering first how comfortable are you talking about that particular case in terms of how you became to be involved in it, and how you became to be a witness for the defence.
Mark Tyndall: Sure. I’ve been approached for a number of these non-disclosure cases and I feel it’s so important to HIV prevention that I’m quite keen to participate in the dialogue. One of the ways I can do that is to help the defence with their report writing focusing on estimates of HIV transmission risk. In the Steven Boone case I was asked to actually testify.
Let’s talk about that. Tell me about that nature of the evidence you presented.
Well, by the time I got involved it was all over the papers, so I had already read something of the background of the case, but basically what I was asked by the defence was to write a report around the different sexual encounters of the people that had brought charges against Steven Boone and to comment on the risk of HIV transmission associated with these encounters.
So you presented expert evidence on the risk of various sexual acts?
Right. And actually in this case the prosecution had already asked their expert witness to give their estimates and and I was asked to specifically comment on those estimations.
Now it looks from the press that you were given a pretty rough time by the prosecution?
She was fairly aggressive with her questioning. I thought I’d be there for ten minutes – it was pretty straightforward what I thought I had to do – but I was on the stand for about two and a half hours and she was really trying to get me to say that there was a risk for HIV transmission through oral sex. Really most of the conversation was trying to get me to say that the risk was not zero - and I had to say it probably wasn’t zero, but as close to zero as one can get
Now did you have interaction with Steven Boone at all during this process, or not?
Not at all. In this courtroom setting, he was standing in the middle of the courtroom behind glass. I could see who he was but I didn’t have any interaction with him.
And do you have any impressions of his demeanour and how he was behaving?
He seemed to be quite engaged in what was going on but he just looked kind of scared and didn’t seem to change his expression that much.
So did you have many discussions with his defence attorney in the course of this process?
We met on two or three occasions and had some correspondence through email.
How did you feel about the fact that you were the only defence witness in this case?
I didn’t really know that. I knew my role as the expert witness was to comment about the risk of HIV transmission, and this was the same role I’ve had in the other non-disclosure cases I’ve been involved with.
You’ve been involved in other cases as a witness for the defence?
I’ve been prepped to go on the witness stand two or three other times and at the last minute the cases were settled or the defence decided that I didn’t need to appear in court. So this was my first time going to court but I’ve written several reports that have been used in other cases.
And how was the experience?
It was a bit nerve-wracking because I was sitting down in the witness box and she was standing in front of me all dressed up. There is a real power differential that I didn’t expect. I just kept reminding myself that I’m the expert here and she’s not the expert in HIV
I want to talk now about the verdict. What’s your reaction to the verdict?
Well the actual verdict, by the time it came out, the defence had already said that the unprotected anal sex was already non-contested. My role in court was to argue around the oral sex encounters. He was acquitted of those charges, so the defence argument was successful on that issue. I think three of the six charges in the Ottawa area were around oral sex. I did not think the risk from oral sex should warrant the charges.
And they accepted your defence.
I just tried to make the case that after all these years oral sex has not really been identified as a risk factor for HIV transmission. There are several case reports that seem to be convincing, but after 50 million infections worldwide I don’t think oral sex plays much of a role.
So in relation to the guilty verdicts, and moving on to the impact of the case, what message do you think this sends to our community. I think you’ve since spoken up in the press about how unhelpful this is.
Certainly from a public health perspective this is extremely unhelpful. I’m really not sure if the community - the gay men’s community or the HIV-positive community - really understand all the implications of this either. From my perspective - a public health person who deals with HIV - I think it sends a lot of damaging and unintended messages.
Expand on that. Do you want to give your perspective on why criminalization is not helpful to public health or to people living with HIV in general?
Well I think sometimes it gets turned around that by opposing criminalization we somehow don’t think people should disclose – and that is totally opposite to what is intended. The reason that criminalization is detrimental is because it will discourage people from disclosing. For example, I think people would be more likely to get anonymous testing if they are going to get tested. And although it’s going to be hard to track, I really think a lot of people would think twice before they got tested in the first place. We are actively promoting testing and treating. We want people to be tested and if they are positive they should get on life-saving treatment. Criminalization sends the exact opposite message.
So from a public health perspective, criminalization sends a counter-productive message?
If people really understood the implications of criminalization, that every sexual encounter you’ve ever had is under the microscope and you’re at risk of somebody coming up with a non-disclosure complaint, well it’s one of the biggest threats we have to HIV prevention.
I want to move on to the community’s response to this. I haven’t seen a lot of reaction to this verdict. I know the AIDS Committee of Ottawa was quick of the mark and the HIV/AIDS Legal provided a comment. David Hoe too, Jay Koornstra and a handful of other individuals. But not much else. I know it’s a complicated case that some may think is unsympathetic. Does this concern you though that we haven’t really come out against this verdict?
Oh yes, it’s been very quiet. I think that the research that Barry Adam presented shows that many people that are HIV-positive support criminalization so from an individual perspective people feel that people should disclose – and that’s exactly what the public health approach should be. It’s really about creating an environment where that’s most likely to happen - and criminalization does exactly the opposite. So I think it’s quite reasonable from a community perspective that everyone who is HIV positive should be encouraged to disclose. That’s what we want to do. Un-stigmatize it. You should be quite open to disclosing your status and I think we are all working towards a place where that occurs. Unfortunately, criminalization increases the likelihood that people will NOT disclose.
Maybe this is a case then that we are adding ethical considerations to the mix. Typically we frame our arguments in a legal framework and this case causes us to think more than about when criminalization is wrong and what’s entered the picture here is some ethical processing of the verdict?
Oh yes. Really it goes beyond that to stigmatize HIV, to treat it like leprosy. It is like HIV just appeared and we are afraid to death of it and the only response that we can come up with is to criminalize people who are spreading it. But we are thirty years into the epidemic and we know so much about effective prevention and that’s what we should be focussing on - and criminalization takes us back thirty years .
So talking about going back, would you agree that the recent Supreme Court ruling was a step backwards?
Yes, at least before there was some hope where one could argue that condoms OR undetectable viral load reduced the risk to become non-significant. But now they’ve laid it out where the only defence is that the HIV positive person will have to be undetectable on treatment AND use condoms.
Getting back to the community reaction to this case, would you like to see more advocacy around this case?
I think it’s a bit of a two–edged sword. This is definitely an important issue and we need to be out in front of it and ensure that people are informed. Having said that, the publicity surrounding these cases creates alarm and stigma directed at HIV positive people. Of the top five issues in HIV prevention in Canada - this is one of them, and if the community has nothing to say about it, well that’s just not good.
This is a complicated case. But my own sense is that silence is not helpful. Would you agree?
Definitely. To date it has been the criminal justice system, driving what should be the public health agenda in HIV and to me, they are the wrong people. The HIV community and Public Health should be setting the agenda, not the criminal justice system.
I think that’s a great place to end. Mark, thank you so much for talking to us.