The Prince Arthur Herald

The Supreme Court was right on HIV and consent

The Supreme Court of Canada recently issued a ruling in R. v. Mabior clarifying the requirement for people with HIV to disclose their status to sexual partners. If the accused has: (1) a low viral load, and (2) uses a condom, there is no realistic possibility of transmission. As a result, the Court ruled, there is no requirement to disclose HIV status to a partner if these two conditions are met. The ruling builds upon a previous judgment in R. v. Cuerrier, where the majority held that failure to disclose that one has HIV may “vitiate” (negate) consent to sex and can make one liable to be charged with aggravated sexual assault.

The Cuerrier test was based on the following two elements: that (1) a “dishonest act” must occur, which includes lying or failing to disclose HIV status; and (2) the complainant must be deprived of knowledge which would have caused him or her to refuse sexual relations that resulted in exposure to a significant risk of bodily harm. Opponents of Cuerrier argue that the test is both uncertain and it overextends the criminal law. The Court in Mabior recognized that Cuerrier gives rise to uncertainty over what constitutes “significant risk” and what constitutes “bodily harm.”

The Court, instead of rejecting the Cuerrier test, held that it is valid in principle. In general, the Canadian laws in this area go further than those of other Commonwealth jurisdictions. England, for example, only criminalizes actual transmission of HIV when the transmitter is aware of his or her status. If someone has HIV and deceives his or her partner, even if exposure through unprotected sex occurs, the disease must actually be transmitted for a charge to be laid. In Australia, six of nine jurisdictions also require transmission, and the same is true for New Zealand.

The Canadian approach is preventative, which is more sensible than the strict English definition requiring transmission. As long as the risk is present, such conduct should be punished, regardless of whether or not transmission occurs. The Court in Mabior recognized that HIV antiretroviral therapy significantly reduces the risk of transmission; however, evidence accepted by the Court indicates that therapy on its own is still not safe enough, and there is still a “significant risk of bodily harm.”

Likewise, the Court recognizes that condom use is not fail-safe, due to the possibility of failure and human error. A combination of both condom use and low viral load “precludes a realistic possibility of transmission of HIV.” As a result, the Court held that if both of these precautions are upheld, there is no realistic possibility of transmission, and thus, consent is not negated if one fails to disclose positive HIV status.

The Mabior decision has been criticized from both extremes. Some of the interveners in the case, composed of the Canadian HIV/AIDS Legal Network and a number of HIV/AIDS clinics, issued a press release arguing that this decision is a “cold endorsement of AIDS-phobia” and “will stand as an impediment to public health and prevention, and add even more fuel to stigma, misinformation, and fear.” They further argue that condoms are 100% effective when used properly, and that “people not living with HIV need to be empowered to accept responsibility for their own health.” Instead of victim-blaming, these groups should instead focus on the responsibilities people with HIV must take to avoid transferring the disease.

The alternate side of the argument is that even though the risk is negligible and virtually nil, an element of risk still exists. A lack of disclosure prevents the partner from making a completely informed decision. The Toronto Sun’s Michele Mandel goes so far as to argue that the Mabior decision is akin to playing Russian roulette with people’s lives. The evidence brought forward in this case highlight that if both prongs of the test (the low viral load and the condom use) are obeyed, there is virtually zero risk of transmission. To compel disclosure in such a circumstance becomes a moral decision, not one of personal safety. It is not appropriate for the courts to opine in purely personal decisions where there is no risk of harm. Thus, the Supreme Court acted appropriately by finding a middle ground between the two extremes and addressing the issues of uncertainty that arose from Cuerrier.


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