Rethinking risk: the relevance of condoms and viral load in HIV nondisclosure prosecutions.

• Author: Grant, Isabel
• Position: Canada

An HIV-positive individual who fails to disclose his or her status to a sexual partner may face charges ranging from nuisance to murder for such behaviour, with the most common charges being aggravated assault and aggravated sexual assault. The number of prosecutions in Canada against individuals who fail to disclose their HIV-positive status to their sexual partners has risen over the last ten years. At the same time, scientific advancements in treatment options and our understanding of transmission, condom usage, and viral load are constantly influencing the assessment of the risk that nondisclosure poses to the complainant in any given case.

The author reviews the recent case of R. v. Mabior, the first judgment in Canada to criminalize nondisclosure in the context of protected sex. She argues that encouraging condom use is so important, and that the use of condoms reduces the risk of transmission so significantly, that the criminal law should distinguish between protected and unprotected sex in cases of nondisclosure. The author proceeds to critique the trial judge's reliance on viral load as a factor in determining whether nondisclosure poses a significant risk of serious bodily harm under the test established in Cuerrier. The author argues that the accuser's viral load, unlike condom use, is not a manageable standard on which to base culpability.

Un individu srropositif qui omet de divulguer son etat a son partenaire sexuel s'expose a, des poursuites criminelles allant de la nuisance au meurtre. Les poursuites les plus communes sanctionnant un tel comportement sont celles de voies de fait graves et l'agression sexuelle grave. Le nombre de poursuites contre des individus ayant omis de divulguer leur srropositivite a leur partenaire est en hausse au Canada depuis les dix demieres annees. En meme temps, les avancees scientifiques au niveau des options de traitement, de meme que la meilleure comprehension de la transmission, de l'usage du condom et de la charge virale dans le sang, influencent sans cesse et de maniere diverse l'evaluation du risque que pose la non-divulgation pour le plaignant.

L'auteure examine la decision recente R. c. Mabior, qui constitue le premier jugement au Canada a criminaliser la non-divulgation dans le cadre d'une relation sexuelle protegee. Elle affirme qu'encourager l'usage du condom, lequel reduit de maniere significative le risque de transmission, est si important que le droit penal devrait etablir une distinction entre les cas de non-divulgation lors de relations sexuelles protegres et lots de relations sexuelles non protegres. L'auteure critique la prise en compte par le juge de premiere instance du la charge virale dans le sang en tant que facteur permettant de determiner si la non-divulgation pose un risque significatif de blessures graves au sens du test etabli dans l'affaire Cuerrier. L'auteure croit que le la charge virale de l'accuse, contrairement h l'usage du condom, n'est pas un critere sur lequel il est possible en pratique de faire reposer la culpabilite.

Introduction I. The Facts in Mabior II. The Position of the Parties III. The Judgment IV. Analysis A. The Use of Condoms B. Viral Load Conclusion Introduction

Over the past ten years in Canada, we have seen an increase in prosecutions against (mostly) men who fail to disclose their HIV-positive status to their sexual partners. (1) The Crown has relied on charges ranging in severity from nuisance (2) through to murder. (3) Most notably, in 1998, the Supreme Court of Canada held in R. v. Cuerrier that the failure to disclose one's HIV-positive status, where this creates a significant risk of serious bodily harm to the complainant, constitutes fraud and thereby negates consent to sexual activity. When this is combined with the risk of transmitting HIV, the crimes of aggravated assault and aggravated sexual assault are made out. (4) The Court complicated this finding in R. v. Williams, where it held that, in order to establish aggravated assault or aggravated sexual assault, the Crown would have to prove that the complainant was HIV-negative at the time the accused failed to disclose his or her status. If this cannot be proven, then the proper verdict is attempted aggravated (sexual) assault. (5)

Many articles have been written on the pros and cons of the criminalization of nondisclosure, (6) and this case comment does not revisit that debate. Rather, it assumes that criminalization is here to stay, at least for the immediate future. The Supreme Court of Canada has considered this issue and upheld criminalization on three occasions without a single dissenting voice. (7) This comment focuses on how best to limit and define the contours of criminalization, looking specifically at the relevance of condom use and viral load.

R. v. Mabior (8) is but one of many cases dealing with serious criminal charges against an accused for failing to disclose his or her HIV status. While Mabior is only a trial decision, there are two difficult and important aspects of the decision that merit attention. First, Mabior is the only case in Canada to criminalize nondisclosure in the context of protected sex. (9) Second, Mabior is the only case to hold that, in the context of protected sex, a very low or undetectable viral load can sufficiently reduce the risk of serious bodily harm to preclude a finding of fraud negating consent. This comment will focus on these two issues and highlight the complexity of nondisclosure prosecutions. I argue that encouraging condom use is so important, and that the use of condoms reduces the risk of transmission so significantly, that the criminal law should distinguish between protected and unprotected sex in cases of nondisclosure. In contrast, however, I argue that viral load is not yet a manageable standard on which to base culpability.

1. The Facts in Mabior

   The accused in Mabior was charged with ten counts of aggravated sexual assault and one count each of forcible confinement, invitation to sexual touching, and sexual interference. Only the aggravated sexual assault charges are the subject of this comment. (10) The evidence indicated that the accused sought out teenage runaways from vulnerable backgrounds, one as young as twelve years old at the time of the offence, by offering them drugs, alcohol and a place to stay. As of the date of trial, none of the complainants had tested positive for HIV. (11)

   Mabior learned that he was HIV-positive in January of 2004. After receiving this information, he had extensive involvement with the public health system. Public health officials provided him with information regarding HIV and told him to practise safer sex and to disclose his HIV status to his sexual partners. Mabior was also warned of the potential criminal liability that could attach to nondisclosure. He received condoms from the health unit on a regular basis. However, he was diagnosed with gonorrhea and was a named as a contact person for chlamydia, facts which were used at trial to cast doubt on the assertion that he used condoms appropriately in sexual activity. (12)

   Between 1 January 2004 and 31 March 2006, the accused had sexual intercourse with the nine complainants, sometimes with the use of a condom and sometimes without. In no case did he disclose his HIV status prior to sexual intercourse. He was, with one exception, compliant with his antiretroviral medication regime which brought his viral load down to an undetectable level from October 2004 to December 2005. However, neither public health officials nor his doctor ever suggested to Mabior that an undetectable viral load meant the virus was not transmissible. (13)

2. The Position of the Parties

   The Crown took the position that nondisclosure should be criminalized regardless of whether the accused used a condom because of the "unreliability" of condoms. It argued that the fact that condoms had broken on three or four occasions with one complainant demonstrated that the accused was not using condoms properly. Further, the Crown pointed to the fact that there was no evidence that the virus could not be transmitted when a person's viral load was undetectable. Even though that risk was very low, the potential consequences of transmission were so "lethal" that even a minimal risk was not one that a complainant should be expected to bear. (14)

   The defence, in contrast, argued that protected sex should not be criminalized. Further, it was argued that it was highly probable that the accused could not have transmitted the virus when his viral count was low or undetectable. Defence counsel claimed that the accused knew that his viral load was low and that he knew there was little or no risk of transmission. The accused relied on the fact that none of the complainants had been infected to support his argument that there was a very high probability that he could not have transmitted HIV during the relevant time period. (15)

3. The Judgment

   Justice McKelvey began her analysis by considering whether the Crown could establish that the accused had endangered the life of the complainant, a required element of the charge of aggravated assault. She found that this endangerment was established regardless of whether the accused used a condom. The finding of endangerment was based on the 20 per cent failure rate of condoms cited by the one expert witness at trial. In instances where the condom may have broken or fallen off, the trial judge found that this was the equivalent of no condom being used. The finding of endangerment was not negated during the period in which the accused had an undetectable viral load. The trial judge held that, although the risk was greatly reduced, the scientific evidence before her supported the position that HIV could still be transmitted when the accused's viral load was undetectable, particularly if he or she had another sexually transmitted disease. (16)

   In rejecting the relevance of viral load, Justice McKelvey stated...