In two landmark judgments last week – R. v. Mabior and R. v. D.C. – the Supreme Court of Canada tried to clarify criminal sanctions against people who fail to disclose to potential sex partners that they are infected with HIV.
Its new, stringent test requires individuals to disclose their HIV status if there is a "realistic possibility" a sex partner might become infected. To escape prosecution, infected individuals will henceforth have to have a "low viral load" and use a condom.
Advocates of those suffering from HIV believe the decisions fly in the face of increasing medical advances in treating and controlling HIV. Other critics see the rulings as confusing and poorly articulated.
What is a "realistic possibility" of infection?
The court's new tests are imprecise. Experts testifying at future trials are bound to disagree. Trial judges will reach varying conclusions. Appeals will inevitably be pursued and, eventually, the issue will come back again to the Supreme Court of Canada for resolution. "It makes me wonder to what extent the Supreme Court really understood the evidence about viral loads," says Jonathan Shime, a lawyer for a coalition of HIV-AIDS organizations. "Is one in five thousand a realistic possibility? What about one in a hundred thousand?"
The court confined its analysis to HIV, leaving individuals with gonorrhea, syphilis and herpes in legal darkness – and guaranteeing a string of future appeals.
Other sex practices
Last week's judgments are narrowly confined to vaginal intercourse. But what form of disclosure is needed for, say, oral sex? "They just dodged it, even though they know these cases are in the trial courts right now," University of British Columbia law professor Isabel Grant says.
The broken condom
If a condom breaks, does an individual with HIV have to inform his sex partner of his medical status after the fact? The court gave no guidance on a scenario that is far from uncommon.
Persuading an individual to have sex through fraud is a form of sexual assault. By stating that a low HIV viral load and the use of a condom counter the obligation to disclose HIV status, the court suggests that unwitting sex partners can be deprived of the chance to decide whether they are willing to accept minute risks of infection.
The court also made virtually no reference to recent decisions that stress the need for consent before any sex act. "Sexual assault is wrong regardless of whether it causes specific harm," University of Ottawa law professor Carissima Mathen says.
Prof. Grant says the court's failure to square the HIV cases with sexual-assault jurisprudence is troubling. "I think this case demonstrates how we are going to mess up sexual-assault law with these HIV cases."