The prosecution in a Hamilton HIV disclosure case is staying an aggravated sexual assault charge this month. A gay man was charged in February 2009 after an ex-partner alleged they had oral sex without his disclosing that he had HIV.

The ex-partner has since been tested and is HIV-negative.

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network said in a statement:

“There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

Xtra, as a policy, doesn’t identify those accused of sexual assault for failure to disclose their HIV status.

The charges were based on the accused's performing oral sex, rather than receiving it. Elliott says this particular case shows why the province’s Attorney General should work with community groups to develop guidelines in laying criminal charges. 

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.

In the Hamilton case, scientific evidence shows there was no significant risk of HIV transmission, says Cecile Kazatchkine, spokesperson for the Canadian HIV/Aids Legal Network.

“We know oral sex is super low risk,” says Kazatchkine. " The question is, do we really want to prosecute for oral sex when the partner gave consent?"

Kazatchkine says people living with HIV shouldn’t have to bear all the responsibility in the relationship to disclose. Even with this case being stayed, she says the public may continue to fear oral sex as a risky activity in transmitting HIV.

“Everyone is responsible for their safety, especially in consensual sex. Everyone should assume there is a risk. Whatever the partner may say in the end, about one quarter of people living with HIV in Canada don’t know they have it. We can’t rely on disclosure,” says Kazatchkine.
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