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Balfour Der, a lawyer with the DerBurgis law firm, says that if the evidence showed someone’s life wasn’t endangered the charge could certainly be a lower level assault, like sexual assault causing bodily harm. (CBC)

Recent cases before the courts are raising the issue of the legal responsibility of those living with HIV.

A number of people who have not disclosed their HIV status to partners have been charged with aggravated sexual assault, becoming high profile cases.

In a CBC exclusive, a local AIDS group said aggravated sexual assault charges for those with HIV are too severe.

Simonne LeBlanc, executive director of AIDS Calgary, said the law in Canada is based on intent to cause harm but it’s very vague.

"If you define it as you're going to potentially give someone a disease, that's where they're coming from," said LeBlanc.

"But if you add in the effect of anti-retroviral drugs, it diminishes the amount of virus in the blood so that they aren't actually at significant risk of harm."

AIDS Calgary’s stance is that it should be considered the same as other sexually transmitted infections.

The organization said having the added charge of aggravated sexual assault only elevates the stigma of those living with AIDS, and might prevent other people from getting tested.

For example, Xavier Robert Bissonnette was sentenced in a Calgary courtroom last week to six years in prison after pleading guilty to three counts of aggravated sexual assault.

Bissonnette, who is infected with HIV, was originally charged after he picked up a 17-year-old girl from a bible camp in central Alberta and took her back to his Calgary home to have sex with her. The two met on an online dating site.

When information of the first assault became public two other victims stepped forward. HIV tests for all three women have come back negative.

Medication reduces risk

Mark Randall is HIV positive, but his partner is HIV negative.

He and his partner have just celebrated their ninth anniversary.

With modern medications and precautions, Randall said the likelihood of spreading the AIDS virus is very minimal.

"The science is contradicting the law," said Randall. "There's this confusion between what is the law and what science is actually saying about risk."

Laws change

Balfour Der, a lawyer with the DerBurgis law firm, said aggravated sexual assault is a combination of an assault, or the intentional application of force to another person, an aggravated injury, like wounding or endangering someone’s life, and a sexual component.

"If someone is infected with the HIV virus, and knowingly is infected, and deliberately wants to infect an ex-partner or someone like that, that’s how they get to aggravated sexual assault because that person’s life would be endangered," said Der.

He said if the evidence showed someone’s life wasn’t endangered the charge could certainly be a lower level assault, like sexual assault causing bodily harm.

"Presumably some medical experts will be able say, ‘Look, a person’s life is not endangered by being infected,’ then they may be able to come down in the level of seriousness of the harm that’s alleged to have been suffered by the complainant," said Der.

Case coming forward

Another case coming up in court is against Apay Ogouk. He surrendered to police in August 2010 after a Canada-wide manhunt.

He is accused of not disclosing his HIV status and infecting two women in their 20s and sexually assaulting a teenager who was under the age of 16 at the time of the alleged offence.

Ogouk faces several charges, including one count of sexual interference with a minor and four counts of aggravated sexual assault.