Obligation to disclose HIV-positive status to all sexual partners

 

A number of years ago, a man in Canada was diagnosed with HIV (AIDS). Shortly thereafter; he attended a counselling session where he was informed of his obligation to disclose his HIV–positive status to all his sexual partners before having sex with them.

He had sexual intercourse with two women at various times after he knew that he was HIV-positive and there was no dispute that he knew knew that he was HIV–positive during that time period.  At the time of his sexual encounters with the two women, he had been given two separate probation orders requiring him to “keep the peace and be of good behaviour”. Breach of those orders could result in a sentence of incarceration for aggravated assault.

Unfortunately, the two women didn’t know that the man they were having sex with was HIV-positive so they let him insert his penis into their bodies. Further, he didn’t use a condom with the first woman and one time out of five times he was having sex with the other woman, he didn’t use a condom. Even then, he had to inform his sexual partners that he was HIV-positive. If he didn’t ejaculate, then that wouldn’t be a medical problem for the women but if he did ejaculate, then it is possible that the two women could get AIDS also.

While he was driving one of the women home after having sex with her, he was pulled over by the police for a driving infraction and the officer recognized the man and asked the woman if she had unprotected sex with him and she said that she did. He told her that he was HIV-positive and advised her to go to a hospital and be tested. She was tested and it was determined that she hadn’t contracted the disease. Despite that, the police laid a charge of aggravated sexual assault against her HIV-positive sexual partner.

He met another woman and he didn’t use a condom on the first time of five times he was having sex with her. She learned about his HIV-positive status after watching a TV newscast about him and subsequently she reported him to the police. The police then laid another charge of aggravated sexual assault against him. She too hadn’t contacted the HIV disease.

On the evidence accepted by the trial judge of the Superior Court in which he was tried, the Crown established that the appellant was HIV–positive, that he failed to disclose his HIV–positive status to two women prior to having intercourse with them and that he failed to use a condom on some of the occasions in question. He was sentenced to a term in prison.

Through his lawyer, he appealed both the two convictions and the sentences. The grounds for his appeal were as follows:

First, the appellant submitted that there was no evidence at trial relating to the risk of HIV transmission, either generally or specifically, in relation to the alleged sexual acts at issue in this case.  In the absence of such evidence, the appellant said that the Crown (prosecutor) failed to submit a successful argument that required a response on the part of the defence.

Second, the appellant contended that the trial judge proceeded from a finding of unprotected sex when the appellant was HIV–positive to a finding that, in effect, concludes that unprotected sex with a person who is HIV–positive itself raises a realistic possibility of HIV transmission, such that the requirement of deprivation or risk of deprivation is made out.  This conclusion, the appellant argued, runs contrary to the Supreme Court of Canada’s previous findings in the Mabior case. 

That case was a very interesting one. Mabior clarified the law when the court ruled that sexual intercourse with an HIV–positive person poses a significant risk of serious bodily harm” only where there is a “realistic possibility of transmission of HIV. 

Was there a significant risk that the appellant could transmit the disease to a sexual partner if he didn’t use a condom? The appellant essentially contended that since there was no medical or expert evidence regarding the degree of risk of HIV transmission posed by the appellant’s specific sexual acts with the two women, there should not been a conviction against him.  His lawyer argued that since there was no evidence one way or another that gave rise to a realistic possibility of the transmission of HIV especially if he possibly had a low count of the HIV virus, he should have been acquitted of those charges.

 

Further, his lawyer argued that the fact that the two women didn’t get the virus after he had unprotected sexual intercourse with them was proof that his insertion of his unprotected penis into the women was no risk to the women.  Thus, the appellant’s lawyer submitted that the Crown had failed to establish a prima facie case of deprivation or risk of deprivation, namely, a realistic possibility of HIV transmission.

 

Before I go any further, let me compare that argument with another. What if a person points a firearm at another person when there is no bullet in it? Section 87.(1) of the Canadian Criminal Code states that without lawful excuse, it is illegal to point any firearm at another person whether it is loaded or not. Now there is a very good reason why pointing an unloaded firearm at someone is a serious offence. Such an event could place a victim of such an act into a state of terror.               

Does it not follow that if a sexual partner of another who is HIV-positive doesn’t know that her partner has that disease and only learns of it later after the unprotected sex act has been completed, that the unsuspecting partner could go through a period of deep concern wondering if she now has the same disease that the other partner might have given to her? This is why it is imperative that persons who are HIV-positive are required by law to inform their sexual partner that he or she is HIV-positive. The choice of having sex with the other person is then based on whether or not the person with the HIV virus is going to use a condom.

This is what one of the jurists on the Ontario Court of Appeal said about our main protagonist in this article.                                                                     

“In my view, his argument is unsustainable.  On the appellant’s reasoning, any case that differs from the precise factual makeup considered in Mabior would require expert evidence to establish a baseline infection risk.  Mabior does not suggest that expert evidence of the basic risk of HIV transmission for intercourse will be required in every case to ground a conviction for aggravated sexual assault arising from unprotected acts of intercourse, anal or vaginal, with an HIV-positive partner.  Rather, Mabior holds that a realistic possibility of transmission of HIV is negated by evidence that condom protection was used and the accused’s viral load was low at the time of intercourse.” unquote

The Crown rightly argued in Mabior that to establish whether a particular sexual act posed a significant risk of transmitting HIV would typically require the Crown to call expert evidence as to the accused’s viral count at the time of the offence as well as risks associated with any condom protection used. Of course that would be impossible since the appellant would have hardly then gone to the hospital immediately after he had sex with each of the women to obtain a viral count. And asking for a viral count just prior to his trial would be meaningless since it could easily change in the interim.                                                                                           

The jurist in the Ontario Court who wrote the decision for the other two jurists said in their decision

“It follows, in my opinion, that once it was established in this case that: (1) the appellant was HIV–positive; (2) the appellant did not disclose his HIV–positive status prior to intercourse with the appellants; (3) the complainants would not have engaged in sexual activity with the appellant had they known of his HIV–positive status, and (4) the appellant failed to use a condom on the relevant occasions of intercourse, the Crown had established a prima facie case of a realistic possibility of HIV transmission.  On the Mabior standard, even if the evidence had established that the appellant had a low viral load at the time of intercourse with (the two women) a realistic possibility of HIV transmission would not have been negated. I therefore conclude that the appellant’s appeal from his aggravated sexual assault convictions should be dismissed.” unquote

The man then had to finish his sentence in prison.