The Supreme Court of Canada is set to issue a major ruling Friday on whether it is a crime for people with extremely low levels of HIV to withhold that fact from their sex partners.
The Supreme Court will be ruling on two separate cases, from Manitoba and Quebec, essentially updating its landmark 1998 ruling on the subject – which some critics argue is outdated because of medical advances in treating the virus that causes AIDS.
The court ruled 14 years ago that people with HIV must inform their sex partners of their condition, or face a charge of aggravated sexual assault, which carries a maximum life sentence.
Intervenors in the case have argued that the 1998 ruling has sowed confusion and been unevenly applied.
They say advances in HIV therapy mean people can live long lives with minuscule levels of the virus that are almost impossible to transmit.
Prosecutors from both provinces have argued HIV carriers have a duty to inform their partners regardless of the risk, so they can make an informed decision.
The British Columbia Civil Liberties Association, one of the intervenors, urged the court to set aside its 1998 decision and remove the requirement of HIV carriers to seek consent before sex. Alternatively, the group said, the court could refine its ruling to reflect medical advances.
"This refinement would recognize that condom use or an undetectable viral load significantly reduces the already minute risks of HIV transmission, be consistent with public health objectives, and promote certainty in the criminal law," the association says in its factum.
"The current, absolute duty to disclose, even to a stranger who asks no questions and chooses to engage in unprotected sex, undermines personal autonomy, discourages personal responsibility for sexual health and rests on an invariant view of sexual relationships. People sometimes choose to engage in inherently unsafe sex."
Crown prosecutors argued that those carrying the virus owe a duty to disclose their conditions to their prospective partners.
"Certain acts are dangerous in and of themselves because they create the chance that someone could be hurt or killed," said the Manitoba government's submission. "It does not matter that the chance of this occurring is small – the law aims to stop people from taking that chance."
One of the cases involves Clato Mabior of Winnipeg, who was diagnosed with HIV in January, 2004. He had sex with nine different women between February, 2004, and December, 2005, without telling them he was HIV positive.
None of the women contracted the disease.
Mr. Mabior was convicted of aggravated sexual assault in six of the nine cases and sentenced to 14 years in prison for failing to disclose his illness. He was acquitted in three of the cases because the judge was satisfied that his low level of HIV, plus that fact he wore a condom, negated his duty to tell those women about his condition.
Four of those convictions were overturned by the Manitoba Court of Appeal, which found not everyone who had sex with Mr. Mabior was exposed to "significant risk."
In the Quebec case, a woman with HIV, who cannot be identified, had sex with a man she met at her son's soccer game in 2000 without disclosing her illness. She had been taking anti-retroviral drugs after receiving her HIV diagnosis nine years earlier.
When she told the man about her illness, he left her, but returned several weeks later. The two had a four-year, live-in relationship during which they had protected and unprotected sex. The man remained AIDS free.
They broke up when the woman accused the man of assault, a crime for which he was convicted.
The man later complained about their first sexual encounter, and her failure to disclose her illness.
The woman was tried and convicted of aggravated assault and sexual assault, but the convictions were overturned the Quebec Court of Appeal.
The court based its ruling solely on the fact that the woman's level of HIV was low at the time of the sexual encounter. The appeal court did not rule on the issue of condom use.