Non-disclosure is assault

The Supreme Court Of Canada has laid down the law on the issues of disclosure of one’s HIV status, safer sex and consent.

And some lawyers worry that the ruling could be a “slippery slope” where Crown attorneys might charge HIV-positive people for having sex without revealing their status, even if they use condoms.

In a Sep 18 decision in the case of R Versus Williams, the Supreme Court found that failure to properly disclose that one is HIV-positive to a sexual partner is aggravated assault.

The case concerns a Newfoundland man, Harold Williams, who in June 1991 began an 18-month relationship with a woman where the couple repeatedly engaged in unprotected sex. On Nov 15 of that year, Williams tested HIV-positive, but did not tell his partner that he had tested positive nor tell her that he had been tested.

Williams was counselled by two doctors and a nurse on three separate occasions about his duty to disclose his status to sexual partners, HIV transmission and safe sex, but he continued to have unsafe sex in what the court called a “shocking level of recklessness and selfishness.”

After the relationship ended, the woman subsequently tested positive for HIV. Williams was charged and convicted of aggravated assault and common nuisance, charges eventually appealed to the Supreme Court.

In this particular case, the Supreme Court did not uphold the assault charge, ruling that the woman could have been infected in those first six months of the relationship, before Williams was tested.

“Before Nov 15, 1991, there was an endangerment but no intent; after Nov 15, 1991, there was an intent but at the very least a reasonable doubt about the existence of any endangerment,” wrote the judges.

But the court did uphold the conviction of attempted aggravated assault, holding Williams accountable for doing “everything he could to achieve the infection of the complainant by repeated acts of unprotected intercourse for approximately one year.”

The court also found that an individual must disclose as soon as they become aware that there is a chance that they are HIV-positive, meaning that a person may be legally required to disclose that they merely suspect they are positive but have not been tested.

The Supreme Court had previously ruled in the 1998 case of R Versus Cuerrier that, “not disclosing one’s HIV-positive status before unprotected vaginal or anal sex amounts to fraud which makes a sexual partner’s consent to sex legally invalid. Therefore, the physical contact amounts to assault.”

This time around, the court also found that fraud is not just deceit, but even includes non-disclosure.

Richard Elliott of the HIV/AIDS Legal Clinic Of Ontario (HALCO) says the concern with the court’s judgment is the phrase “becomes aware of a risk.” He says this could trigger a possible duty to disclose that you are merely at risk for HIV or suspect you are.

“A prosecutor could try to run with this and see what they can make of something like this,” Elliott says.

He says the wording of the judgment may “have just been careless writing and come to nought,” but it’s impossible to tell.

Ryan Peck, also a lawyer with HALCO, says that the way it is written now, an awareness of risk is “a slippery slope.” He says it is at least possible to imagine that a person could be charged criminally for not revealing an HIV-positive status, even if condoms are used, because the court’s phrase “significant risk” is not defined.

“It’s also not clear whether just being gay or having a history of unsafe sex would be enough to trigger a responsibility to disclose that one is at risk for HIV,” says Peck, who points out that there haven’t been many precedent-setting cases on the issue.

Elliott says he’s waiting to see what police, prosecutors and courts do with the Supreme Court decision.

* The HIV/AIDS Legal Clinic Of Ontario is at (416) 340-7790.