To tell or not to tell

One person freezes their used condoms just in case an HIV/AIDS criminal case should ever arise out of their sexual encounters.

Others avoid testing for HIV because if they don’t know they are positive, there is no legal responsibility to disclose that they are.

Others are asked flat out by partners if they have AIDS, and lie when they say no.

Criminal prosecutions of HIV nondisclosure cases are complicated, controversial and highly charged proceedings that intersect law, science and social values. All of that will be front and centre Feb. 8 in Ottawa when the issue goes before the Supreme Court of Canada (SCC). A large crowd of people living with HIV and their caregivers are expected to be in the courtroom.

The highest court in the land will be tasked with deciding whether a person living with HIV/AIDS has a legal obligation to disclose their status to a sexual partner even if science says the risk of transmitting the disease is very low.

The court will hear two appeals brought together by the Attorneys General of Manitoba and Quebec.

In the Manitoba case, Clato Mabior had sex with women after he was diagnosed with HIV. He never advised any of the women of his status, and once lied about his status when asked. Sometimes condoms were used, sometimes they weren’t, sometimes they broke. All but one woman testified had they known Mabior was HIV-positive, they would not have had sex with him. To date, none of the women has been diagnosed as HIV-positive.

Mabior was convicted of six counts of aggravated assault based on the principle that nondisclosure vitiates (impairs the validity of) legal consent to sex. The court of appeal overturned four of those convictions, ruling that where a condom was used or the accused had a low viral load, no assault took place because the partner was not at significant risk of serious bodily harm.

In the Quebec case, a woman identified as D.C., who has HIV, had convictions of sex assault and aggravated assault reversed on appeal when the court concluded she did not expose her partner to a significant risk of HIV because her viral load was low at the time.

The issue resonates in Hamilton, where Johnson Aziga became the first person in the world to be convicted of murder for not disclosing he is HIV-positive. He has also been designated a dangerous offender.

The SCC decision will not have a direct effect on Aziga’s appeal, however, since his is a transmission case and Mabior and D.C. are exposure cases, says assistant Crown attorney Karen Shea, who successfully prosecuted Aziga.

The decision will resonate in Ontario, where half of the country’s 130 criminal HIV cases are heard. It seems strange, then, that Ontario’s Attorney General has retired its intervener status at the hearing. It withdrew last month.

It has some HIV legal experts wondering if Ontario is softening its position on disclosure, which up until now, has had Crown attorneys arguing that anyone who is HIV positive must - with no exceptions - disclose their status to a sexual partner. The argument has been that any risk of transmission, no matter how small, must be known to a partner in order for them to have informed consent to sex. Without that disclosure, the infected partner could be accused of aggravated sexual assault or murder.

When asked why the AG is not going to participate, ministry spokesperson Brendan Crawley said he would not comment “as these matters are currently before the Supreme court.” In fact, the matter of the AG’s intervener status is not the issue before the court at all.

Other interveners are eager to talk about their positions. The Criminal Lawyers’ Association of Ontario will argue against “the slippery slope” of “consent that could be vitiated far too easily,” says Andras Schreck, who will represent the association. It could open the door to people coming forward after the fact and complaining other kinds of disclosure weren’t provided. For instance, a person’s religious or ethnic background.

The key, says Schreck, is there must be a significant risk of serious harm. When condoms are used or viral loads are low, the risk of infection is very low. “The criminal law cannot and was never intended to protect everybody against all risks of harm and to allow it to do so broadens its reach far beyond what is necessary or desirable in a free and democratic society,” the association argues.

A coalition of HIV/AIDS organizations also has intervener status. Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, says two issues are at stake: human rights, where a person living with HIV is concerned, and public health.

“People are being prosecuted when they pose no significant risk of harm,” he says. The consequences of conviction include prison and being registered as a sex offender.

Treatment of HIV has progressed drastically in the 14 years since the disclosure issue first went to the SCC. “The law needs to evolve itself with the science,” Elliott says.

The law, as it is, feeds the “stigma and fear of HIV” and leaves the public with the impression sex with someone with HIV always comes with great risk, which is why it is an offence not to disclose one’s status.

That “stigma and fear” will cause “HIV chill” and discourage people from seeking testing and counselling, says Elliott, who adds keeping used condoms in freezers and avoiding testing is not unheard of.

If significant risk of harm is not considered, he says, “the crime becomes not disclosing your HIV status and comes close to criminalizing people with HIV just because they have HIV.”