New HIV guidelines could clear Nunavut man of sexual assault charges

Bobby Kaotalok is charged with aggravated sexual assault for allegedly failing to disclose his HIV status — but new guidelines could change that.

Bobby Kaotalok charged in Yellowknife with having sex with woman and not disclosing that he's HIV positve

A file photo of Bobby Kaotalok from 2013. He's charged with aggravated sexual assault for allegedly having sex with a woman in Yellowknife in August and not disclosing that he's HIV positive.

A recent federal directive could have an impact on a Nunavut man who's facing charges for allegedly not disclosing that he has HIV to a sex partner.

Bobby Kaotalok is charged with aggravated sexual assault for allegedly having sex with a woman in Yellowknife in August and not disclosing his status. He appeared in N.W.T. Territorial Court in Yellowknife on Tuesday, and the case was adjourned until February. Kaotalok has not entered a plea in the case.

It's illegal for an HIV-positive person to have sex with someone and not disclose their status, if the incident poses a realistic possibility of transmitting the virus.

However, a new directive by Canada's attorney general, which went into effect Dec. 8, issues new rules for what federal prosecutors should consider a "realistic possibility."

The directive tells prosecutors not to pursue charges against people who have suppressed viral loads, which is the measurement of a virus in the bloodstream (i.e. under 200 copies of the virus per millilitre of blood).

It also encourages prosecutors to "generally" avoid pursuing charges if people were taking their drug treatment as prescribed, even if their viral load did not stay below that level.

We're going to follow the directive, of course.- Ian Mahon, N.W.T. chief federal prosecutor

The Northwest Territories' chief federal prosecutor Ian Mahon said the Crown is waiting on more information from Kaotalok's defence team, including possible details about whether Kaotalok's viral load was too low to transmit the virus at the time of the alleged sexual encounter.

That information "will determine whether or not we proceed on the charges," Mahon said.

"We're going to follow the directive, of course," he said. But "if something untoward happens or unexpected happens, I want to have all options available."

The directive also tells prosecutors to consider laying non-sexual charges if it better aligns with the situation. For example, prosecutors could lay a charge of negligence rather than aggravated sexual assault.

Mahon confirmed that after receiving additional information from the defence this could be considered.

The guidelines apply only to federal prosecutors, who only handle cases such as these in the three territories. (CBC)

History of not disclosing HIV

This isn't the first time Kaotalok has faced criminal charges for failing to disclose his HIV-positive status.

In 2011 he was accused of having sex with multiple women without disclosing. He pleaded guilty to two counts of aggravated sexual assault, and was sentenced in 2013 to three-and-a-half years in prison.

According to the judge's sentencing at that time, Kaotalok did not consistently take his medication, which worsened the state of his infection and increased the risk of spreading the disease. With one of the women, he was wearing a condom, but with the other, it was unknown whether a condom was worn.

The new prosecutorial guidelines also encourage prosecutors not to pursue charges when a condom is used.

Kaotalok's attorney, Jay Bran, declined to comment on the new prosecutorial guidelines or whether they might affect his client's case.

The guidelines apply only to federal prosecutors, who only handle cases such as these in the three territories.

Scientific evidence shows that people with undetectable, or extremely low, viral loads do not transmit the disease to others. People may be able to maintain undetectable viral loads if they regularly take their anti-HIV medication.