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Police protect accused’s ID in HIV non-disclosure case – sort of

Poz Edmonton man charged for encounter with woman, no transmission

A 50-year-old HIV-positive Edmonton man was charged with aggravated sexual assault after allegedly failing to disclose his status to his female partner.

The alleged incident follows a March 31 police complaint by a woman claiming she slept with an Edmonton man in Nisku, Alberta, who failed to disclose he had HIV. QMI agency reported police didn’t say whether the alleged victim and the man used protection, but there are no other known victims and they had been acquainted before having sex.

This case is unusual in that the RCMP is keeping the name of the accused from the media.

In a court case now underway in Vancouver, a judge ordered a publication ban on the name of both the accuser and the accused — which could set a legal precedent for how these cases are handled by police and the media going forward.

But a spokesperson for the RCMP, Jodi Heidenger, says the move has nothing to do with publicly disclosing the health status of the accused, and everything to do with protecting the identity of the alleged victim.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim. This is not a case of an unknown male with HIV forcing sex on women. The sexual intercourse in this case was consensual. However, the male failed to inform the woman that he was infected with HIV. We strongly recommend to anyone who is considering entering into a sexually intimate relationship to take the necessary precautions to keep themselves safe by having themselves and encouraging their partner to be tested for HIV and other STIs and practising safe sex,” says Heidenger.

Heidenger says the alleged victim is showing no signs of contracting HIV, but she will continue testing for six months.

The original complaint was made to Edmonton police, but Heidenger says the RCMP is leading the investigation because the alleged incident occurred in the Leduc region, which is RCMP territory. With the exception of Ontario, the RCMP is the primary police agency for various communities, responsible for enforcement at all levels and conducts day-to-day duties and operations just as any other municipal police force would.

About 100 HIV non-disclosure cases have come before the courts since 1998, says Cecile Kazatchkine, spokeswoman for the Canadian HIV/Aids Legal Network.

“I don’t know anything about this case in Edmonton. Our organization is not commenting on it. We don’t know what type of relationship these people had. But should people who don’t disclose be labelled as criminals and sent to prison? The Canadian Legal Network believes in certain circumstances, the scope should be more defined. Otherwise, it can have a very negative impact for people with HIV,” says Kazatchkine.

The law says that you are required to disclose your status before engaging in sexual intercourse representing a “significant risk” of HIV transmission. Kazatchkine says the concept of “significant risk” is open to interpretation.

“Many people have been accused with not disclosing their HIV-positive status when a condom was used. There is no room for criminal law in these circumstances because there is no significant risk,” says Kazatchkine.

Kazatchkine says charging people for non-disclosure in activities where there is no significant risk can lead to blackmail.

“People can say ‘If you leave me, I’ll tell people you had sex with me without telling me you had HIV.’  This impact must be taken into account,” says Kazatchkine.

The accused was released from custody with a May 10 court date; however, a new court date was set for March 2011. Heidenger says the Crown is pushing for a closer court date and details will be made public when it happens.