Failure to disclose HIV to sexual partners not always a crime

Posted Oct 6, 2012 by Arthur Weinreb
The Supreme Court of Canada has held not disclosing HIV positive status to a sexual partner will not always result in a conviction for aggravated or sexual assault.
Supreme Court of Canada
Supreme Court of Canada
Wiki Commons
Yesterday, Canada's top court handed down two decisions regarding whether the failure of someone to tell potential partners of their HIV positive status before engaging in sexual intercourse is a crime. All nine justices of the Supreme Court of Canada concurred that the status need not be disclosed by a person who, at the time the sexual relations occur, has a low viral load AND a condom is used.
R. v. D.C.
The case of R. v. D.C. originated in Quebec. D.C. was charged with sexual assault and assault after she had sex with the complainant without telling him she was HIV positive. Evidence was adduced at trial that her viral load was "undetectable" but there was conflicting evidence as to whether a condom was used. The trial judge found that a condom was not used and she was convicted.
On appeal to the Quebec Court of Appeal, the appellate court found the trial judge's inference that no condom had been used was reasonable. However the justices held that because her viral load was undetectable, prosecutors failed to prove there was a "significant risk of serious bodily harm." The convictions were set aside.
R. v. Mabior
This case originated in Manitoba. Mabior faced nine counts of aggravated assault after he had sexual relations with nine women without telling them about his HIV. The trial judge acquitted him in those counts where his viral load was low AND a condom was used.
On appeal, the Manitoba Court of Appeal varied the decisions. The court found that no crime was committed in cases where Mabior's viral count was low OR a condom was used.
Yesterday's decisions modified a Supreme Court of Canada judgment handed down in 1998. In the case of R v. Cuerrier, the Supreme Court held that failure to disclose one's HIV status amounted to fraud that negated consent to sexual activity. The simple failure to inform a sexual partner of HIV positive status was enough to lead to a conviction for aggravated assault or sexual assault.
The change in the court's position was justified on the grounds that medical advances since 1998 have reduced viral loads to a point where, together with condom use, there is no "significant risk that serious bodily harm will occur." Without a substantial risk of serious bodily harm, consensual sexual activity cannot be a crime.
AIDS activists, who believe non disclosure should not lead to criminal charges, were disappointed with the rulings. Richard Elliott, executive director of the Canadian HIV/AIDS Legal Action Network told CTV News he was disappointed. He said, "The court on the one hand is saying we're not going to use the criminal law to criminalize every single risk, however small. But in effect, that's what they've done."
According to Elliott, the risk of a man transmitting HIV to a woman through unprotected sex is one in 100,000.
And Tim McCaskell, a Toronto AIDS activist who has been HIV positive for 30 years, is quoted in the Vancouver Sun as saying, "The standards are being set at a level that far surpasses the standard of risk that normal people deal with every day of their lives."
The Supreme Court of Canada left it open to again modify the criteria of what constitutes a crime as research into HIV/AIDS makes further advances.