4 min

HIV & assault

Will local conviction open the floodgates for same-sex charges?

A string of high-profile assault convictions against HIV-positive men is heightening awareness around the legalities of nondisclosure — and prompting legal experts to question whether a courtroom is the best place to try to curb the spread of the virus.

The Canadian HIV/AIDS Legal Network is organizing a forum in Toronto to discuss the impact of the Cuerrier decision, a 1998 Supreme Court ruling that stated HIV-positive Canadians could be found guilty of assault if they fail to disclose their status to sexual partners before engaging in unprotected sexual intercourse, a ruling that’s fuzzy on the legal necessity of disclosure before other forms of sexual contact. The forum comes on the heels of a Vancouver meeting organized by the British Columbia Persons With AIDS Society.

Two HIV and assault cases have recently grabbed national headlines. In February, a Toronto accountant “Mr W” [see Editor’s Note below] was outraged when his yearlong legal battle against former lover Michael Davis resulted in 18-month conditional sentence with six-months’ house arrest from a Superior Court judge. Davis plead guilty to aggravated sexual assault for knowingly putting the man at risk of HIV infection.

A little more than a week later, a Saskatchewan judge sentenced former CFL player Trevis Smith to six years in jail for exposing two women to HIV. None of the victims in either the Smith or Davis case contracted HIV.

Mr W, 34, says he’s boggled by how similar crimes could result in drastically different sentences.

“I’m not worried that [Davis] will do it again — he has suffered a lot — but I believe the verdict sends the wrong message,” he says. “In my circle of friends alone, I know three people who were infected by their boyfriends. There are people out there who are silently dealing with this on their own and all this verdict does is reinforce that going to the police is totally useless.”

Mr W says he wants Canadians to know that even a “stodgy” chartered accountant in a monogamous relationship is at risk of HIV infection.

The two men met in July 2005 and Mr W says he instantly connected with Davis on every level. Mr W testified that Davis, now 47, repeatedly assured him that he was negative before the two had unprotected sex in August 2005. Two days later Mr W’s ex tipped him off that Davis was lying.

“It was me who suggested [having unprotected sex] because we were both negative, monogamous and using protection,” says Mr W. “I think people have a right to privacy as long as you’re being safe. I understand why he did it but I still think he was cowardly. He could’ve told me and I would’ve still been there.”

Although Mr W didn’t become infected, he says he lived in a state of perpetual fear and anxiety for six months because he experienced many symptoms associated with HIV. He lost weight and got jaundice, prompting one relative to jokingly ask over dinner if he had AIDS. His performance at work suffered so much he eventually explained the whole situation to his boss — a moment he describes as humiliating. After going for eight vials of blood tests per week for eight weeks with inconclusive results, Mr W was finally diagnosed with mono.

Mr W says he hopes the Ontario Court Of Appeal will reconsider the sentence in Davis’s case but he says he understands why someone in his position would stay quiet.

“I lost friends over this. People said I should take care of myself, that I’m a hypocrite.”

So does he feel the ordeal was worth the outcome?

“On some days I think it is, on other days I think it isn’t,” he says. “It felt like a gigantic waste of time when I sat there on that day in court. Honestly, enough time has gone by now that I don’t care what happens.”

Legally, Mr W’s case is unique. To date, most of the high-profile HIV and assault cases resulting in convictions have concerned heterosexual sex. Legal analysts and academics aren’t sure why same-sex cases are less frequent and believe there are a number of reasons behind the issue’s low profile in queer circles.

“There’s a bit of a sense in the community that this is now a pressing issue,” says Glenn Betteridge, a senior policy analyst at the Canadian HIV/AIDS Legal Network. “In the gay male community, since the beginning of the HIV epidemic, there has been an ethos that everyone is responsible for their own sexual health.”

Betteridge is also concerned that the Cuerrier decision has had a chilling effect on HIV-positive queers who are afraid of having their faces plastered on the front page of the newspaper. Last weekend the mug shot of HIV-positive Hamilton woman Robin Lee St Clair, 26, was splashed across the front page of the Toronto Sun after police charged her with one count of sexual assault for allegedly failing to disclose her status.

“It could be the high-profile cases of HIV-positive people are scaring people away from testing,” says Betteridge.

The Canadian HIV/AIDS Legal Network has argued there is no evidence showing that the criminalization of HIV has stopped the spread of the virus, and Betteridge says it could be giving Canadians a false sense of security that the law is protecting them from infection. In 2005 UNAIDS reported that 58,000 Canadians were infected with HIV at the end of 2004 — a 20 percent increase since 1999.

Betteridge says the upcoming forum will focus on how the law affects HIV-positive women, who he says are more vulnerable to harassment, job loss, denial of employment and violence.

Rather than press charges, Betteridge says victims can seek justice through the Criminal Inquiries Compensation Board, a quasi-judicial independent agency that awards financial compensation to victims of violence. “This shouldn’t be confused with getting a sense of satisfaction from seeing someone put behind bars.”

Academics are also beginning to examine the issue of HIV and assault more closely. University Of Windsor sociology professor Barry Adam is applying for a grant with a group of lawyers and researchers to do more research on the topic. In April Adam will present a paper to the Canadian Association For HIV Research based on interviews with men who frequently have unprotected sex. Adam says the law plays only a minor factor in the decision to have unprotected sex.

EDITORS NOTE, January 9, 2014: An earlier version of this story contained the full name of Mr W and was altered due to privacy concerns.