Under the Criminal Code, s. 273, a person may be found guilty of aggravated sexual assault if they failed to disclose their HIV-positive status prior to intercourse and there is a realistic possibility that HIV will be transmitted. Although Canada’s Criminal Code makes no specific reference to “HIV”, section 273(1) of the Code states, “Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant”. Criminal court decisions are currently based on the premise that intercourse with an HIV-positive person constitutes a “significant risk of serious bodily harm” and potentially endangers the life of a sexual partner, if there is a “realistic possibility” of HIV transmission.
In R. v. Mabior (2012), the Supreme Court of Canada considered a case where an HIV-positive man was charged with nine counts of aggravated sexual assault for engaging in sexual relations with nine complainants, without informing them of his condition. None of the nine complainants developed the condition and the accused argued that he did not have a duty to disclose his HIV status since he had a low viral load which meant that the risk of transmission was low or negligible. However, at trial, a Manitoba court convicted the man on six of the nine counts of aggravated sexual assault.
The accused appealed his conviction arguing that the trial judge’s finding that both undetectable viral load and condom use are necessary to reduce the risk of serious bodily harm below a significant amount and avoid criminal liability for failing to disclose his HIV-positive status, is contrary with the direction of the Supreme Court in R. v. Cuerrier (1998). The Manitoba Court of Appeal agreed that the trial judge erred in their understanding of Cuerrier; and the Appeal judge found that low viral loads (through effective antiretroviral treatment) or the use of a condom could negate significant risk of transmission. On this basis, the Appeal Court decided the accused should be acquitted on four of the six counts.
The Crown subsequently appealed the four acquittals to the Supreme Court of Canada. The Supreme Court relied on the test in R. v. Cuerrier that declares “a person may be found guilty of aggravated sexual assault under s. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted." In Mabior, the Supreme Court concluded that without the use of a condom, a low viral load (as opposed to an undetectable viral load) meets the criterion for “a realistic possibility of transmission of HIV’; accordingly, the court convicted the accused on three of the four counts under appeal. The accused was not convicted on the fourth count because he used a condom in that instance.
There are many in the medical community, who assert that the application of criminal law to this issue is too broad and is based on a poor understanding of the science related to HIV and its transmission. And, without a proper understanding of current scientific evidence regarding HIV, lawmakers may have a flawed or incomplete understanding of what constitutes a “realistic possibility of transmission of HIV” and this can, in turn, result in a miscarriage of justice.
In a 2014 report in the Canadian Journal of Infectious Diseases and Medical Microbiology written by a team of six leading Canadian HIV medical experts, the authors concluded that medical and scientific evidence clearly indicates that HIV is difficult to transmit during sex, much less likely than is commonly thought. The report defines the possibility of HIV transmission along a continuum, from low to negligible to ‘no possibility’, and it considers the impact of key factors such as condom use, the type of sexual act, antiretroviral therapy and viral load. The authors of the study assert that the scientific community has reached a consensus on how to interpret the data after over three decades of research, and the results should be communicated to lawmakers in the criminal justice system to inform their application of the law.
A Dec 28 CBC News article criticized the application of criminal law on other grounds as well; particularly, for equally prosecuting individuals who simply don’t disclose the condition, perhaps due to fear of rejection, shame or a psychological disorder, with persons who intentionally transmit the condition to their sexual partners. The article quotes Canada’s Justice Minister, Jody Wilson-Raybould, who stated on World AIDS Day, Dec 1st, “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS”. Ms. Wilson-Raybould asserted that, as treatments have improved, our criminal justice system should adapt to reflect current scientific evidence on this condition. The Justice Minister vowed to review how the system deals with non-disclosure of positive-HIV status, including current arrest and prosecution practices.
A 2012 paper commissioned by the United Nations Programme on HIV/AIDS (UNAIDS) similarly criticizes the practices of prosecuting sex between adults where someone has failed to disclose their known positive HIV-status, as sexual assault, in instances where there was no intent to harm, as well as the practice of “applying harsh prison sentences to alleged HIV ‘exposure’ during non-consensual acts that pose very little or no risk of HIV infection, e.g. biting, spitting or scratching”. The United Nations stance is that the application of laws is overly broad on this issue and tends to target marginalized or vulnerable members of society.
The criminal laws governing HIV non-disclosure are complicated and very strict in Canada. If you need confidential legal advice pertaining to your HIV-positive status, you should speak with a sexual assault lawyer at the Law Firm of Ted Yoannou to find out about your legal rights and options based on recent criminal law court cases.
“Canadian consensus statement on HIV and its transmission in the context of criminal law”, The Canadian Journal of Infectious Diseases and Medical Microbiology (2014): www.aidslaw.ca/site/wp-content/uploads/2014/06/Canadian-statement1.pdf