A BC Supreme Court judge has acquitted an HIV-positive man of aggravated sexual assault, even though the court found he failed to disclose his HIV status to his boyfriend and had unprotected sex with him.
"I have concluded that the Crown has failed to prove that the risk of HIV transmission here — 12 in 10,000 sexual encounters or 0.12 percent — meets the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault," Justice Lauri Ann Fenlon ruled today.
Fenlon found that the accused had unprotected sex with his boyfriend three times. She also found the accused deliberately lied about his HIV-positive status, and that his boyfriend would not have agreed to have sex without a condom had he known the truth.
The question is: did the accused's failure to disclose expose his boyfriend to a significant risk of harm?
No, Fenlon ruled, it did not.
"In my view, a risk of transmission of 0.12 percent is not material enough" to constitute a serious risk of harm, she ruled.
Fenlon based her finding of statistical probability on Dr Richard Matthias's (pictured above) expert testimony that the risk of transmission in this case was just 4 in 10,000 per unprotected act of anal intercourse. The accused here is a bottom.
"From a legal point of view, this case means that unprotected sex will not necessarily lead to a conviction even if the accused failed to disclose," the accused's lawyer, Jason Gratl, said outside of court.
"From a practical point of view, however, both disclosure and protected sex is the wise option to avoid prosecution altogether," Gratl added.
Translation: this verdict does not decriminalize HIV in Canada. But it's a step in the right direction.
It's an acknowledgment that merely being HIV-positive and failing to disclose does not automatically make someone a criminal. It's having undisclosed, unprotected sex where there's a significant risk of transmission that's a crime — at least for now.
"This verdict should not be understood to mean that the court condones the behaviour of the accused," Fenlon made a point of noting.
"He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk. But not every unethical act invokes the heavy hand of the criminal law," the judge ruled.