Canadian Supreme Court Rules that HIV is Still a Crime

David Crowe
October, 2012

Since 1998 the law on HIV in Canada has been based on the Cuerrier precedent. On October xx 2012 the Supreme court reviewed two cases, and Cuerrier, and made only slight adjustments. Someone who has sex without revealing their positive HIV status is guilty of aggravated sexual assault, one of the most serious crimes in Canada, unless they both use a condom and have a low viral load.

There is no law governing HIV transmission in Canada, so the laws of fraud are used instead. If you believe in the HIV=AIDS=Death dogma this makes some sense. Consent to a transaction, such as sexual intercourse, is waived if someone is withholding a vital fact. Sex without consent is sexual assault. And, since HIV is viewed as deadly, sex without consent and a deadly weapon is aggravated sexual assault. In the case of Carl Leone, this landed him a prison sentence of 21 years (including 3 years of house arrest before his conviction).

Many people are judgmental about this and believe that even if the HIV=AIDS dogma is not proven there is no harm in revealing your HIV status. But there objectively is. People have been murdered when a lover discovered their HIV status (e.g. in Dallas and Winnipeg, Canada). They may tell someone who then freaks out and spreads word around, resulting in a community shunning the person. People may assume that they are homosexual, a drug user or highly promiscuous.

One of the cases reviewed by the Supreme Court, that of a woman known only as DC, illustrates the dilemma. She was convicted on the basis of aggravated sexual assault on the basis of one incidence of sex with a man that the judge believed was without a condom. Soon after she revealed her HIV status to the man and he left her. But then, of his own volition, he came back, and had often unprotected sex with her during their relationship of the next four years. When they split up and she came back to the house which he refused to leave to collect her belongings, he assaulted her and was convicted. Only then did he make a complaint about the arguably unprotected sex from four years ago. She was convicted of sexual assault and aggravated assault by one judge, this was overturned by a court of appeal, which was reaffirmed by the Supreme Court of Canada.

You might guess that the court found it incredible that a man accusing this woman out of vengeance after willingly having unprotected sex with her for four years, and removed the conviction on that basis. But you would be wrong. Everything turned on a cryptic note from a doctor, “Sex c new partner - condom broke - consl to disclo”. The first judge had the word of the man that there was no condom, the word of the woman that a condom was used but broke. From this the judge ruled that the doctor’s note showed that the woman was lying and therefore it was two-to-one against her. The Supreme Court ruled that there was no evidence that she had not used a condom, and that because her viral load was low, she should not have been convicted.

The more complicated case was that of Clayton Mabior. He was appealing five convictions based on sex with five different women. The Supreme court dismissed one conviction on the basis that he had used a condom, but retained the other four holding to the standard of a low viral load (which he had) and condom use.

In summary, the Supreme Court ruling in Canada shows that an HIV-positive is guilty of aggravated sexual assault unless they either disclose their HIV status (and hope that their partner does not deny this) or both have a low viral load and use a condom (and hope that their partner does not deny this). The severity of the punishment is the same regardless of whether the alleged victim becomes HIV-positive or not, even though the Supreme Court noted that both Australia and New Zealand see sex without seroconversion as a much lesser crime.

One implication of this will be that people who do not regularly go for viral load testing may be found guilty by negligence. And, since AIDS drugs do appear to reduce this surrogate marker, they may be forced to take drugs if they want to have a sex life. They will have to walk a very narrow tightrope, and their sexual partners have a knife that they can use to cut the rope at any time. If they later reveal their status all their sexual partner needs to say is that they had sex without a condom once or that they had sex with a condom but around the time of a detectable viral load test.

The Supreme Court did reveal a little about their rationale regarding risk of transmission. They did not reveal why they felt that HIV antibodies were proof of infection with HIV, nor why they believed that HIV was a deadly virus – “It is enough to note that HIV is indisputably serious and life-endangering”. They just assumed this like almost everyone else. They concluded that the risk of sexual transmission was about what was reported in Padian in 1997, about 1/1000 with every incidence of vaginal intercourse. They relied on the report of a doctor and a meta-analysis (Boily MC et al. Heterosexual risk of HIV-1 infection per sexual act: systematic review and meta-analysis of observational studies. Lancet Infect Dis. 2009ÊFeb; 9(2):Ê118Ð29). They then concluded that the use of a condom reduced this risk by 80-90% and that a low viral load further reduced it by another 89-96%. This is an amazingly strict definition of what is meant by an insignificant risk, even if you accept all their numbers and the meaning of both HIV antibody tests and viral load measurements.

One criticism of the law in Canada is that it is only applied to HIV. What if the laws of fraud were applied to someone who implies or states that they were wealthy and someone claims that they only had sex on this basis? Or what, like a real case in Israel, if someone finds out later that someone is from a religious or ethnic group that they despise. This could lead to a Canadian white man accusing a woman of sexual assault if he later finds out she is an Indian, or Jewish, or Mormon. In Israel the Jewish woman who had sex with a man that she did not know was Palestinian did succeed in getting him convicted of rape even though the sex was perfectly consensual. And what about all the women running around with HPV antibodies. If they have sex with a man who later has sex with another woman who gets cervical cancer will they be guilty.

Another anomaly is that the actual ‘transmission’ of HIV, the development of HIV antibodies in a sexual partner, is ignored. While we might not believe in the meaning of the antibodies one would think that no harm is done. It is like someone accepting a ride from someone that they assume is a good driver, who then drives like an utter maniac. This could end badly, in a traffic accident, or less badly with the shaken passenger arriving at their destination with no permanent damage. According to the Supreme Court of Canada the two endings should be punished in exactly the same way.

Finally, and most seriously, the Supreme Court did not benefit from any viewpoints questioning the HIV=AIDS=Death dogma. The only benefit of this is that a lawyer could argue that a person is innocent because HIV antibodies are not proof of HIV infection, because HIV seropositivity does not lead to illness, or because HIV is not sexually transmitted.