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Oct052012

Criminalization of HIV non disclosure continues in Canada with SCC's Mabior decision

In companion cases R. v. Mabior and R.v. DC, the Supreme Court of Canada reconsidered HIV disclosure for people living with HIV and AIDS in the context of sexual relations.

Mabior was charged with nine counts of aggravated sexual assault (and other related offences), based on his failure to disclose to women with whom he had sex that he was HIV-positive.  Aggravated sexual assault carries a maximum sentence of life imprisonment.  None of the nine women contracted HIV.  At trial, Mabior was convicted on six counts, reduced to two counts on appeal.  The SCC confirmed three of the convictions against Mabior. 

R. v. DC involved a woman who was diagnosed with HIV in 1991, received treatment, and had sex with a man in 2000 without disclosing her HIV status.  DC advised him of her status shortly afterward and they went on to live together for several years during which they had protected and unprotected sex.  DC's partner never contracted HIV. The couple broke up after the woman accused her partner of assault. He was convicted of assaulting both DC and her son.  A year later, he informed police that DC had not informed him prior to their first sexual encounter that she was HIV positive. DC was charged with sexual assault and aggravated assault.  At the time of their first sexual encounter, DC's viral load was undetectable.  At trial, the court found that DC had sex with her partner without the use of a condom (her evidence was to the contrary) and at a time when she had not disclosed her HIV status. DC's conviction was set aside on appeal on the basis of her low viral load.  The SCC dismissed the appeal and set aside the original conviction on the basis that it was grounded in speculation.

In 1998, the SCC had found in R. v. Cuerrier that the failure to disclose one's HIV status may constitute fraud vitiating consent to sexual relations under the Criminal Code provisions dealing with aggravated sexual assault.  That charge was found to be appropriate because of the risk of serious bodily harm. The Cuerrier test requires two elements:  (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm).  

Since Cuerrier, criticism emerged that the test is uncertain in failing to draw a clear line between criminal and non‑criminal conduct and that it either overextends the criminal law or confines it too closely.

In revisiting the issue, the SCC clarified that "significant risk of serious bodily harm" will require disclosure of HIV status if there is a "realistic possibility of transmission of HIV".  A "realistic possibility of transmission of HIV" will be negated where the accused's viral load at the time of sex is low; and condom protection is used.  If these two elements are present, there is no requirement to disclose HIV status.

The decision means that individuals taking safe sex precautions by using condoms may still be criminally prosecuted and face life imprisonment if they fail to disclose their HIV status to a partner even where their viral loads are low and their partner did not contract HIV.  Unfortunately, this approach represents a missed opportunity to confirm a human rights and public health based approach for HIV/AIDS in Canada by failing to have considered or to have given adequate weight to the following considerations. First, there are already Criminal Code provisions in place to deal with the concerns arising in the most egregious cases involving intentional transmission of HIV.  Second, reducing the incidence of sexually transmitted diseases is better dealt with through public health programs and human rights legislation rather than through criminal law. Third, individuals who are not HIV positive should also be required to take responsibility for their sexual health.  Finally, the result risks that individuals will be discouraged from pursuing HIV testing, counseling and treatment, key components in eradicating the disease.

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