Criminal appeal could set a new precedent for HIV patients who use condoms during sex

A group of HIV/AIDS organizations is hoping to establish a new legal precedent that would keep people with HIV from facing criminal charges for non-disclosure if they use a condom during sex.

A 2012 Supreme Court ruling said HIV patients are not always obligated to disclose their condition

Experts and the federal government say proper condom use prevents a 'realistic possibility of transmission.' (Shutterstock)

A group of HIV/AIDS organizations is hoping to establish a new legal precedent that would keep people with HIV from facing criminal charges if they use a condom during sex.

The group is making its argument Wednesday at an ongoing case at the Ontario Court of Appeal in Toronto. 

The appeal was launched by a man who was convicted of aggravated sexual assault in 2017 after three complainants said he did not disclose his HIV diagnosis before their sexual encounters.

The man, identified by the initials N.G., used a condom and did not transmit the virus to any of them. He was sentenced to 42 months in prison, short of the life sentence possible after an aggravated sexual assault conviction.

"There should not have been a prosecution. The law should not be criminalizing people who use condoms," said Richard Elliott, executive director of Canadian HIV/AIDS Legal Network, one of three groups intervening in the appeal.

"We know that the risk of transmission in such circumstances is zero."

During the appeal on Wednesday, Crown attorney Grace Choi said low risk or lack of intent to transmit the virus are not sufficient, even if a person uses a condom. 

She also questioned submissions that condom use prevents the reasonable possibility of transmission. 

Failing to disclose a person's HIV status "deprives the sexual partner of meaningful choice," she told the court. 

She added that a person with HIV "unilaterally imposes that risk" on their partner.

The HIV & AIDS Legal Clinic Ontario and the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA) are also involved.

The groups say more than 200 people in Canada have been unfairly prosecuted for non-disclosure of their HIV status.

N.G. was found guilty after a judge determined he was obligated to disclose his condition to his partners.

But the judge's ruling, Elliott argues, was based on an incorrect reading of the law, which allows for people with HIV to not disclose their condition to sexual partners in certain cases.

The Supreme Court of Canada ruled in 2012 that HIV patients were only obligated to disclose their condition if there was a "realistic possibility of transmission." The court also acknowledged that advances in treatment of HIV may narrow the circumstances where there is a duty to disclose.

In December 2017, the Department of Justice said that criminal law should "generally not apply" to people with HIV if they have small amounts of the virus, or if they properly use a condom during sex.

However, the judge ruled N.G.'s condom use did not meet the threshold for non-disclosure, since he was not being treated for HIV and was carrying higher levels of the virus than is considered safe.

Elliott called that a "highly discriminatory application of criminal law" that does not account for the latest scientific data on HIV transmission and condoms.

"That's why I think this case is so important, because it's going to squarely revisit this question of whether condoms actually will suffice to preclude a criminal conviction," he said.

The ruling could set a precedent for other HIV non-disclosure cases across Canada, he said.

Alex McClelland contracted HIV from a partner who did not disclose their condition. He said prosecuting those people represents a 'failing of the criminal justice system.' (Alex McClelland/Twitter)

'Fear and hysteria' 

Mark Tyndall, an HIV expert and professor at the University of British Columbia's public health department, said condoms are "100 per cent" effective at preventing the transmission of HIV.

He has served as an expert witness in several criminal cases involving non-disclosure, in which he said outdated fears about the disease have led to needlessly harsh punishments.

"We should have put this scientifically to rest decades ago," Tyndall said. "To change the fear and hysteria around HIV takes decades, we're hopefully at the tail end of this."

Many HIV experts, including Tyndall, say the disease should be treated as a public health, rather than criminal, issue, especially in cases when the person with HIV took precautions to protect their sexual partners.

The threat of criminal prosecution "creates a context of fear" among people with HIV, says Alex McClelland, which may prevent some from disclosing their condition to partners and discourage others from being tested.

McClelland contracted HIV more than 20 years ago from a partner who did not disclose their condition. He now studies the criminal justice system as a postdoctoral fellow at the University of Ottawa.

"Me going to the police about that would not solve anything, would not make anything better for me," he told CBC Toronto.