HIV-positive Edmonton teen avoids jail for unprotected sex
A 17-year-old girl has been given a conditional discharge for having unprotected sex with two teenagers without disclosing her HIV-positive status.
The girl, who cannot be identified, was living on Edmonton streets when she met the two male youths in the spring of 2011. Both of them were homeless as well. The teen twice had drunken sexual intercourse with the boys over the summer of 2011 at a tent community in the Mill Creek ravine. Condoms were not used. The girl did not disclose that she was HIV-positive.
"That's the critical issue here," provincial court Judge Patricia Kvill said. "She did not notify the people she had sex with and that's the nature of the concern."
However, court heard the girl was not at a high risk to infect sexual partners.
Since her HIV diagnosis in the fall of 2010, the girl had maintained contact with her doctors at University Hospital, despite living on the streets. She attended appointments regularly and provided blood samples to monitor her HIV status to determine if her illness was serious enough to require medication.
She "has never required medication as her viral load is very low," according to an agreed statement of facts presented to court. "This means the risk of transmitting HIV to a sexual partner is extremely low."
A viral load is a measure of a virus's infection in the body. An HIV expert retained by the Crown estimated that the girl's chances of transmitting the HIV virus was five in 30,000 for each time she had sex.
The agreed statement of facts also stated that the girl's doctors instructed her to use condoms for sexual activity. Kvill disputed whether the girl would have any control over that. "It is equally, if not more, likely that the decision was made by the male partner," the judge said.
Originally charged with two counts of aggravated sexual assault, the girl pleaded guilty to one count of common nuisance. The Criminal Code charge applies because the girl was deemed to "endanger the lives, safety or health of the public."
Kvill concluded that the girl's HIV infection was controlled by doctors and accepted she was a low risk to infect others.
When asked, the girl said "guilty" in a voice the judge could barely hear.
For the next six months, she must obey several conditions, including abstaining from drugs or alcohol, regularly reporting to a probation officer, attend counselling as directed and must disclose her HIV status to any sexual partner.
At the time of the sexual encounters, the girl was spending her nights in the Mill Creek ravine tent community and her days at a youth centre.
Soon after the two males were interviewed by police, the girl's name and picture were released to the media by permission of a court order. That order was required because the girl was a minor and without it could not be identified under the Youth Criminal Justice Act. On Tuesday, court heard that some of the information police gathered in support of that unusual court order to publicly name her was wrong.
"Frankly, she was vilified," defence lawyer Pat Yuzwenko told court. "She's been portrayed as someone who went out and purposefully infected people. That's not true. She's stuck with that. She's living with that."
The teen's doctors were "appalled" that no one had spoken to them, Yuz-wenko said.
The court order to identify the girl ended one day later when she was taken into custody on Aug. 8, 2011, but court heard that Edmonton police did not immediately remove all identifying information from the Internet. She was spotted hitchhiking outside Edmonton and was arrested in Edson.
In their warning to the public, police said the girl was a danger to public health.
"Police are strongly recommending that anyone who has engaged in sexual activity with this woman seek medical attention as soon as possible," read a news release at the time. In a court affidavit, Det. Barb Clover wrote that the girl "is an ongoing danger to others."
The decision to release the girl's photograph and medical condition was criticized by HIV/AIDS advocacy groups who said such actions could stigmatize those who are HIV-positive and discourage them from disclosing their status.
Yuzwenko pointed out the teen was much more attentive to her infection, with regular visits to doctors, than original information stated. Also, Yuzwenko said, no one took proactive steps to help the girl until she was labelled a criminal.
The girl was in custody from Aug. 8 to Nov. 15, 2011, when she was re-leased on bail to attend a residential treatment centre for alcohol abuse. The teen was basically under house arrest, court heard, except for some time over Christmas that she spent with family. Court heard she recently completed the program successfully.
The teen now lives with family, but has an open file with the provincial Children's Services Department.