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UPDATE: HIV-positive gay man on trial

Sex with low viral load and condoms still risky: Crown

UPDATE: April 23, 5:58pm —

The trial of an HIV-positive gay man who allegedly failed to disclose his status before having unprotected sex with his boyfriend concluded today with closing arguments from both the defence and the Crown.

Defence lawyer Jason Gratl argued that the accused did not expose the complainant to a significant risk of HIV transmission.

“In this case, it is clear that the accused and the complainant entered into a safe-sex/condoms-only agreement,” Gratl told the court.

“The accused testified, very plausibly, that the agreement was intended to ensure that the complainant was not exposed to a significant risk of HIV transmission.”

Gratl further argued that the complainant did not rely on the accused’s deception that he was uncertain of his status. The complainant, said Gratl, was aware of the risk of HIV transmission and entered into a safe sex agreement in recognition of those risks.

In terms of the risk of transmission, Gratl pointed to last week’s expert testimony from Dr Richard Matthias who said the risk of transmission was just 4 in 10,000 per act.

Both the complainant and accused testified that every time they had anal sex the accused was the receptive partner, but they disagreed on how many times they had unprotected sex.

The accused testified that he and the complainant possibly engaged in unprotected anal sex once. He told the court it occurred after a drug-fueled New Year’s party which left him “obliterated.”

The complainant testified that they also had unprotected anal sex on December 13, 2003 and throughout the month of January 2004.

In his closing arguments Gratl pointed out that the complainant gave inconsistent testimony on when the first date of unprotected sex occurred. He listed seven different approximate dates that the complainant gave in statements to the police, court testimony, trial notes and preliminary inquiry.

In his closing argument, Crown Counsel Brendan McCabe described the complainant as a more reliable witness than the accused.

“He was thoughtful, considerate, responsive and adamant,” McCabe told the court. “His evidence was most often internally consistent, he most certainly agreed to several of the errors my friend put to him and provided explanations for those errors when he could.”

McCabe addressed the inconsistencies between the accused and complainant’s testimony with regards to the number of unprotected encounters. He read aloud a passage from the complainant’s testimony to explain why he was able to remember the number of unprotected sexual acts.

 “The minute [the accused] disclosed his HIV status to me I replayed in my mind every unprotected encounter for the entire five months and I was on heightened alert, fear and anxiety. It was engrained in my memory, the number of sexual encounters that were unprotected.”

McCabe submitted that the 4 in 10,000 figure, as well as sex with low viral load and condom use, still constitutes significant risk of bodily harm.

“In the Crown’s respectful submission, when you’re looking at that question in the realm of contracting a deadly virus that risk is noteworthy, important and consequential. It’s not just about the numbers – it’s about the harm,” he said.

Justice Lauri Ann Fenlon said she hopes to release her judgment on Friday, April 30 but may extend that.

“It’s a difficult case,” she said. “And as I go through case law and evidence, if I need any more time I’ll let you know because I don’t want to find myself in a position of rushing to a decision that’s not only important to [the accused] and the complainant but other people who may be effected by the outcome of this trial.”

Fenlon then directly addressed the accused.

“I wanted to say at this stage to [you], regardless of outcome, this has been a very trying two weeks and two years for you,” she said while looking at him. “You had to listen and give evidence of a very personal nature and I want to commend everyone for dealing with it in a very calm way, despite the nature of the evidence which is extremely difficult for everyone.”


UPDATE: April 21, 5:20pm —

The trial of an HIV-positive gay man who allegedly failed to disclose his status before having unprotected sex with his boyfriend continued this morning with a defence expert witness who spoke to the broad social implications of HIV disclosure laws.

Madam Justice Lauri Ann Fenlon, however, ruled that his expert opinion evidence was inadmissible.

Justice Fenlon said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, raised important policy issues that an intervener might put before the appeal courts or the Supreme Court of Canada, but pointed out that the HIV/AIDS Legal Network had not applied to be an intervener in the case or challenge the constitutionality of the law. She went on to state that his testimony was not relevant to the issue before her as to whether or not Crown has proven beyond a reasonable that the accused committed aggravated sexual assault.

The court will, consequently, not consider Elliott’s testimony.

Elliott, a lawyer, has been associated with the Legal Network since 1993 and has worked in HIV/AIDS education and awareness for 20 years.

He testified to the challenges of requiring disclosure in all circumstances, saying that approximately a quarter of all people in Canada infected with HIV don’t know they have it.

“I think people recognize challenges of HIV disclosure, including stigma and negative consequences that can very easily flow from their HIV status,” Elliott told the court. “Rather than expect people to overcome those barriers in every circumstance and impose a criminal penalty when they don’t, the emphasis should be on personal responsibility and risk reduction, a sensible prudent strategy in the ability of all people.”

He told the court that the stigma associated with HIV could be a disincentive to disclosure.

“People, quite legitimately, have concerns over employment, housing, loss of personal and other social relationships, ostracism in community and denial of service by service providers,” Elliott testified. “Although we only have limited systemic research on HIV stigma, we certainly do have enough to document that there is still a pervasive stigma associated with HIV.”

He stressed the need for clarity in the law to better define what sexual activities between HIV discordant couples constitute “significant risk” of serious bodily harm as set out in the 1998 Supreme Court of Canada case R v Cuerrier.

“It would provide some clear guidance for people living with HIV and for service providers as to what conduct is criminal and what is not,” he said. “At the moment there is a great deal of confusion, uncertainty and fear; we hear about this fear over and over again,” Elliott told the court.

He said public misconceptions on the virus could seep into the legal arena. He referred to a 2006 Health Canada survey in which one third of respondents stated they believed HIV could be transmitted through kissing or a mosquito bite.

“I know of cases where persons living with HIV are charged with assault, seemingly for their HIV status, for spitting on the pants of another person,” said Elliott. He also cited a case in Ontario where a man living with HIV is facing aggravated sexual charges based on oral sex alone.

There have been prosecutions where “in our view the legal standard of significant risk has not been met,” he said.

Elliott said that every time an HIV non-disclosure case is reported in the media he receives emails and phone calls from HIV-positive people and workers trying to figure out the implications.

“It’s not only my experience but also colleagues of mine who work in the field,” he said. “We all have a fairly consistent experience of people expressing this worry and concern about knowing when they might be charged.”

In his cross-examination Crown counsel Brendan McCabe suggested that Elliott’s perspective was slanted and that he was hardly a neutral party in this case.

The trial resumes April 23 for closing submissions.

UPDATE: April 20, 5pm –

The trial of an HIV-positive gay man who allegedly failed to disclose his status before having unprotected sex with his boyfriend continued today with Crown counsel Brendan McCabe suggesting the accused put his personal interests ahead of the complainant’s safety in withholding his status.

“You say your primary concern was [the complainant],” said McCabe. “But the ultimate way to advise [him] would be to advise him you were HIV-positive, but you chose not to do that.”

“I don’t think I had the mental capacity to do that,” replied the accused.

“What does that mean?” asked McCabe.

“I was still dealing with social stigma, personal prejudice; I was mentally a mess,” the accused answered.

The accused, however, told the court that he advised the complainant of the risk involved.

“I did what I could do to tell him what I needed to,” he said. “If there were 63 dots in the picture, I gave him 62 dots. I told him he needed to act as though I was HIV-positive until I got a test in hand. I believe that’s a very common philosophy in the gay community, that everyone could have it.”

“So it’s a buyer beware market?” McCabe suggested.

“Yeah, but that’s a mean way of saying it,” said the accused.

“Any meaner than lying about your HIV status to a person you cared about at that stage?” McCabe asked.

“I don’t agree with that,” said the accused.

“The best way to protect him would be to reveal your status,” McCabe pressed.

“Ideally, that’s what I should have done,” the accused responded.

Yesterday the accused testified he was aware of one situation when the complainant may have had anal sex without a condom. He told the court that it followed a night of drug use at a New Year’s party. He said he became aware that he may have had unprotected sex when the complainant told him what had transpired.

“You had the perfect opportunity to tell him on New Year’s Day when he told you he hadn’t worn a condom,” McCabe suggested.

“I was coming down from a lot of drugs, he was sketchy, and having a conversation with all those drugs in your system is not a good idea,” replied the accused.

McCabe further suggested the accused was “play acting” when he disclosed his status to the complainant.

“You went to Spectrum Health and got your blood work and you essentially play acted across the couple of days to pretend you just received your results. You were obviously lying to him at that stage. You were presenting as extremely upset,” said McCabe.

“Correct,” replied the accused.

“That was play acting on your part to make your new disclosure convincing, correct?” suggested McCabe.

Yes, it was. I was acting,” the accused said.

UPDATE: April 19, 5:55pm —

The trial of an HIV-positive gay man who allegedly failed to disclose his status before having unprotected sex with his boyfriend continued today with the accused telling the court that he never knowingly engaged in risky sex with the accused.

Last week the court heard the complainant allege that he had unprotected sex with the accused on December 13 and 31, 2003, and throughout the month of January 2004.

The accused denied these allegations saying the one time they may have had unprotected anal sex occurred after a New Year’s party where the accused and complainant used ecstasy, ketamine and crystal.

“I was obliterated leaving that place,” he said. “I don’t think I’ve ever been as high in my whole life before or since as I was on that New Year’s. We walked home because it was New Year’s and impossible to get a cab. [The complainant] held my hand and led me because I didn’t know how to get home.”

When they had sex that night, the accused said he recalled the complainant reaching into the drawer where the condoms were kept, which he said was a part of their sexual routine. He wasn’t aware that they had unprotected sex until the complainant mentioned it to him the next day.

He denied the complainant’s recollection of having unprotected sex in January 2004. He said the complainant sustained a back injury on New Year’s which prevented them from having anal sex. He said that during the first few weeks of January they only had oral sex.

“Towards the end of January, around January 21, [the complainant] asked, ‘What do you want for your birthday?’ and I told him I wanted my sex life back,” said the accused.

The accused told the court that he contracted HIV after being drugged and sexually assaulted by two men from out of town during Pride celebrations in 2002. The men, he said, did not use protection.

As a result, the accused said when he began his relationship with the complainant the two made a “solemn pact” and a “sworn promise” to abstain from unsafe sex until the accused procured a “stamped and approved” negative test.

The accused corroborated the roommate’s testimony that he knew his HIV-positive status before he met the complainant and admitted that he should have revealed his status from the very beginning.

“Why didn’t you?” asked defence counsel Jason Gratl.

“Because mentally, when I got diagnosed two weeks prior to meeting [the complainant], I wasn’t in any state to say the letters HIV in relation to my name,” he told the court.

“I did everything in my power to let him know the risk that was there, including the rape, that it was two guys from [a city with a high rate of HIV infection]. I told him. I was terrified of getting a test. I told him so many clues never to take this upon himself and that we had to have safe sex.”

After he conclusively learned he was HIV-positive, he said a clinic nurse advised him that he should disclose his status to his partners but was not required to do so as long as he didn’t put anyone at risk

“She said if I had anal sex without a condom I have to disclose but anal sex with a condom is perfectly safe and fine,” he told the court. “She said there was a possibility that someone could possibly contract HIV through oral sex but in her 30 years she never heard of it happening.”

UPDATE: April 15, 7:49pm —

An expert witness said an HIV-positive man on trial for aggravated sexual assault had a 0.04 percent chance of infecting his partner every time they had sex.

Dr Richard Mathias told the court he believed HIV transmission rates in anal intercourse are comparable to those in vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which can travel up their urethra. He mentioned that in the case of uncircumcised men the risk is even higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he was aware of any individual incidents in the gay community of the virus going from an HIV-positive receptive partner to a negative partner.

“No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters then the risk would be 20 in 10,000.

Mathias said the risk is comparable to protected sex between an HIV-negative bottom and an HIV-positive top.

Earlier in the day the court heard testimony from the woman who once shared an apartment with the accused and the complainant. She told the court that the accused disclosed his HIV status to her sometime in the middle of summer 2003.

“He disclosed to me that he had the right not to tell his partner within a year,” the woman testified. “I think he wanted to wait and see how the relationship was going to go before he told him.”

She said this made her a bit uncomfortable but trusted that he would make the right choices and promised the accused that she would let him tell his boyfriend about his serostatus.

“I trusted that he wasn’t putting [the complainant] in harm,” he roommate testified.

In February 2004 the roommate had a conversation with the complainant in which he revealed that he and the accused had previously engaged in unprotected sex.

She said the revelation left her “scared to death” and “disturbed by the whole thing” but that she concealed her reaction from the complainant.

“I tried to hide it so I wouldn’t give it away” she said. She told the court she was being a good friend by keeping her promise.

Earlier in the week the complainant testified that the roommate scolded him like a mother about safe sex after hearing his revelation. The roommate, however, denied this saying she excused herself to her bedroom to have her reaction in private.

She testified that she confronted the accused the following day, and that he seemed ashamed. He said “at least if he has it we can deal with it together,” she told the court. She said she was disgusted with the matter and ended their friendship.

The accused and complainant moved out of their shared apartment on April 1, 2004.

Sometime in 2004, the roommate phoned the accused’s mother to warn her about the accused, allegedly telling her that he isn’t who he appeared to be. The roommate told the court she was motivated by concern for the complainant’s safety and well being.

Defence attorney Jason Gratl tried to determine if the call was made before or after the accused disclosed his HIV status to the complainant in March 2004.

She initially claimed to have made the call before the disclosure.

When Gratl pressed her about her previous testimony in which she said she contacted him after the disclosure, she said she had her dates mixed up in the previous instances and that she had, in fact, called the complainant’s mother before he knew the accused’s status.

Gratl then presented her with two signed police statements and transcripts from the preliminary inquiry in which she stated that she had made the call after the accused’s disclosure. When presented with this information she reneged on her earlier statement, saying she actually made the phone call after the disclosure.

Gratl said the context of the conversation would be entirely different depending on the situation.


UPDATE: April 14, 4:50pm —

The trial of an HIV-positive gay man who allegedly failed to disclose his status before having unprotected sex with his boyfriend continued today with defence lawyer Jason Gratl cross-examining the complainant.

The court heard that a roommate who shared an apartment with the accused and the complainant was aware of the accused’s serostatus well before his boyfriend knew.

Within a week of breaking up with the accused, you called the former roommate, Gratl confirmed with the complainant. “[She] then tells you [the accused] was HIV-positive the whole time, he knew it and didn’t tell you. She also tells you she knew as well, but you forgive her for that and are ready to overlook that in forging a relationship with [the former roommate]?”

“Correct,” the complainant replied.

He then told the court he didn’t believe it was his former roommate’s responsibility to disclose the accused’s serostatus to him.

The accused allegedly revealed his HIV-positive status to the complainant in March 2004, a month before they broke up.

“How could he have had numerous unprotected encounters with me physically enjoying our level of intimacy knowing that each time my penis is in him is when I might contract HIV?” said the complainant. “That is despicable.”

Gratl read aloud parts of the complainant’s medical records from the time of his HIV test in 2004. The records note the complainant explained to his doctor that he was always the top in his relationship and that they did have unprotected sex.

Based on that information, the doctor told the complainant he didn’t “believe for a second” that he was infected with HIV and that there was really no known case of a top being infected by a bottom in unprotected sex.

The complainant, who is uncircumcised, explained that the doctor had told him that the serous tissue on the head of the penis is a potential entry point for the virus.

Gratl accused the complainant of recalling events with the intention of convicting the accused.

He pointed to the complainant’s consistent recollection of when the accused allegedly told him he was HIV-negative in the summer of 2003.

“It’s prominent in your mind because it’s not you taking responsibility for your own sexual health; it’s about [the accused] taking responsibility for you,” Gratl said.

“Correct,” the complainant responded.

“You’re focused on making [the accused] as responsible as possible and minimizing your responsibility,” Gratl said.

“I’m not minimizing my responsibility,” the complainant replied. “I was an equal player in this relationship.”

Gratl contrasted the complainant’s recollection of that date with his memory of when he and the accused first had unprotected sex in December 2003.

“You’ve given five or six different accounts of the day you first had unprotected anal sex,” said Gratl.

“Correct,” replied the complainant.

Gratl described it as a “thorny mess of inconsistencies.”

The complainant admitted to not remembering the exact date but that it was the first weekend after his work term ended.

The trial resumes tomorrow in BC Supreme Court.

UPDATE: April 13, 5:20pm —

The defence today repeatedly questioned the credibility of a complainant testifying against an HIV-positive gay man who allegedly failed to disclose his status before having unprotected sex with his boyfriend.

The accused is on trial for aggravated sexual assault.

The complainant alleges the accused lied to him about his positive HIV status, thus putting him at risk for infection.

He told the court his knowledge of the accused’s HIV status came from a conversation the men shared in July 2003.

“You are aware of the potential of deception in relationships?” asked defence lawyer Jason Gratl.

“Correct,” the complainant replied.

“You were involved with deception when you met [the accused], correct?” he asked.

“Yes,” the complainant replied.

The complainant told the court he made an agreement with the accused to use protection in recognition of the risk of HIV transmission, and was aware that such a risk existed in their relationship.

He admitted to being in a state of uncertainty about the accused’s HIV status at the time of their first discussion about safer sex, which is why he chose to use condoms when having sex.

“You were in a state of uncertainty about [the accused’s] HIV status?” asked Gratl.

“Yes, he had not proven it to me.”

“And that’s why you wanted to wear a condom?”

“Yes.”

Gratl asked the complainant about his familiarity with HIV and AIDS in the gay community.

“My common knowledge was that the older generation of men has a higher prevalence of HIV,” the complainant replied. “But I am not aware that my generation has a higher prevalence of HIV. I didn’t know what the prevalence in my generation was.”

The two men again discussed safer sex in September or October 2003. They discussed whether or not to use condoms and ultimately decided to continue practising safer sex until they both got tested.

“In September or October of 2003, I was not ready to rely on what he had told me,” the complainant testified.

When asked why he did not get tested at that point, the complainant said he wanted to wait six months into their relationship to ensure accurate results.

“Usually at that time you wait until six months after the relationship starts to get tested,” he said.

The complainant told the court that he practised safer sex with the accused until Dec 13, 2003, after a night of dancing at an afterhours club led to unprotected sex. He admitted that his use of ecstasy that evening possibly impaired his judgment but said his trust and love for the accused played a role in his decision.

Gratl, referring to transcripts from the preliminary hearing, later asked the complainant to explain an inconsistency in his testimony.

In the preliminary hearing, the complainant testified he was certain he had abstained from sex with the accused after a friend from out of town convinced him to get tested. Yesterday, however, he told the court they had sex once or twice during that period.

When Gratl asked if he could explain that inconsistency, the complainant simply said he could not.

April 12 — A gay man is now on trial in Vancouver for aggravated sexual assault, stemming from a 2003–2004 relationship in which he allegedly failed to disclose his HIV status to his boyfriend, with whom he had unprotected sex.

The boyfriend did not contract the virus.

Justice Lauri Ann Fenlon ordered a publication ban on the names of both the accused and the complainant in the case.

The complainant told the court he first met the accused at a Toronto nightclub during Pride celebrations in July 2003. He said they had sex, hit it off and agreed to enter into a relationship with each other.

“I really loved him,” he said. “I was really attracted to him and excited.”

The accused subsequently moved to Vancouver with a close friend, and in September 2003 they rented an apartment, which they shared with the complainant.

The complainant described theirs as a “regular sexual relationship between two young men.” He said he was always the penetrative partner when they had anal sex and almost always the one who received oral sex.

The complainant testified that they always had protected anal sex until December 2003. Then, on December 13, 2003, they had unprotected anal sex after a celebratory night at an afterhours club where they each took one or possibly one and a half ecstasy tablets.

They returned to having protected sex until New Year’s Eve, when they took ecstasy as well as a hit of crystal methamphetamines.

The complainant testified that in the following month, January 2004, approximately half of their anal sex was performed without a condom.

He described his relationship with the accused as very close. “We were very in love with each other. I adored him.”

The complainant testified that the accused told him he was HIV-negative prior to moving in together. He would not have had sex or entered into a relationship with the accused had he known he was HIV-positive, he said.

In February 2004, a newly-diagnosed friend of the complainant “struck the fear of God” in him when he revealed that he contracted HIV from a previous partner who was not honest about his status. This prompted the complainant to get tested and abstain from sex until both he and the accused received their results.

“I don’t want to be in a relationship with someone who has HIV. I know that sounds horrible, but I don’t want to get HIV,” the complainant testified, listing the health complications, stigma in the gay community, the effect it would have on his career and his hope of one day fathering a child of his own.

But when the accused revealed his serostatus after the February tests, the complainant decided not to leave him after all.

He even chose to continue to have sex with the accused because he was in love with him and still hoped to spend his life with him. They engaged in one or two more sexual acts with condoms.

Then, in March 2004, the accused allegedly had a disagreement with the roommate, and he and the complainant moved into an apartment of their own on April 1. Three weeks later, they had an argument and broke up.

The complainant stated that it was a result of “irreconcilable differences” and had nothing to do with his HIV status.

After they broke up, the former roommate informed the complainant that the accused had actually known about — and told her about — his HIV-positive status two weeks before meeting the complainant in Toronto.

The complainant said he tried to phone the accused but was hung up on after a short conversation. He said his subsequent messages were not returned.

He didn’t hear from the accused again until the end of July 2004 when the accused “confronted” him in an email for discussing his serostatus in the gay community.

The email, read in court, said, “I guess you know how I knew my status a lot longer than I let on. I just found out my status two weeks prior to meeting you… [The roommate] did know everything and she told you the truth.”

According to Canada’s Criminal Code, aggravated sexual assault is any sexual assault that “wounds, maims, disfigures, or endangers the life of the complainant,” and can carry a maximum penalty of life imprisonment.

HIV-positive people can be charged with aggravated sexual assault if they fail to disclose their serostatus and have unprotected sex in such a way that there’s a significant risk of transmission.

The trial resumes tomorrow in BC Supreme Court.