Human rights organizations are intervening in an appeal by an HIV-positive man convicted of two counts of sexual assault causing bodily harm.
Ryan Peck, executive director of HIV & Aids Legal Clinic Ontario, and Richard Elliott, executive director of the Canadian HIV/Aids Legal Network, say their organizations are intervening in an upcoming Nova Scotia Court of Appeal case.
In December 2011, Claude Allan Thompson had sex with two women who consented to sex with him but later said they were unaware he was HIV-positive, which led to criminal charges against Thompson for two counts of aggravated sexual assault.
In 2016, in the Supreme Court of Nova Scotia, Thompson was acquitted of those charges. However, he was convicted of two counts of sexual assault causing bodily harm.
“This is relevant to the entire country because I think that it’s very possible that Crown prosecutors in Ontario could take the same approach,” says Peck.
“Currently, aggravated sexual assault is the charge being used even when the risk of HIV transmission is effectively zero.”
Justice Suzanne Hood said that while Thompson had raised a reasonable doubt about the “realistic possibility” of transmitting HIV to the two complainants, he caused psychological harm to both.
“Fraud can vitiate consent. . . . The dishonest act, failure to disclose, has been established. The second requirement is deprivation; in this case that there was bodily harm,” said the ruling, in R. v. Thompson 2016 NSSC 134.
The 2016 ruling noted that in the Criminal Code the definition of bodily harm includes “psychological harm” and that both complainants experienced anxiety or stress and went for HIV testing after finding out Thompson was HIV-positive.
“I conclude this is not harm of a trifling nature because of the seriousness of HIV as a disease. Nor was the harm of a transient nature. The psychological worry of whether [one complainant] had contracted HIV continued until she had the results of the testing. This satisfies the requirement of deprivation,” said the ruling.
“[The second complainant] testified she had one year of testing for HIV. She said it was stressful and she had a fear of the unknown, that is whether she had contracted HIV. She too suffered psychological harm within the meaning of bodily harm,” added the ruling later.
Legal organizations say Thompson’s convictions are based on legal errors that “encourage the further, discriminatory over-extension of the criminal law and reinforce misinformation and stigma regarding HIV and people living with HIV,” according to a factum filed for the appeal.
“Put most simply, if there was no ‘realistic possibility’ of HIV transmission, there was no legal duty on the Appellant to disclose his HIV-positive status. There was therefore no ‘fraud’ vitiating the complainant’s consent to the sexual encounter and thus no assault of which to be convicted,” said the interveners’ factum.
The interveners argue the judge erred in convicting Thompson of any sexual assault offence because there was no realistic possibility of HIV transmission.
“[The judge] based this conviction solely on the fact that the two complainants testified that they had experienced stress and anxiety about the possibility of contracting the virus after learning that the Appellant was HIV-positive at the time of their single sexual encounters,” says the factum filed by the interveners.
In the 2012 ruling in R. v. Mabior, the Supreme Court of Canada found a person could be found guilty of aggravated sexual assault if the person “fails to disclose [they are] HIV-positive before intercourse and there is a realistic possibility that HIV will be transmitted.”
“If the HIV-positive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met, on the evidence before us,” said the SCC ruling.
In R. v. Thompson 2016 NSSC 134, Hood found Thompson used a condom in the sexual encounter with one complainant.
The judge ruled a condom was not used in the sexual encounter with the second complainant, but there was reasonable doubt if Thompson ejaculated and if the encounter occurred after he had restarted anti-retroviral therapy.
The ruling also states there is “not a realistic possibility of transmission if [the] viral load is less than 1500” and “condom usage by a person with HIV precludes a realistic possibility of transmission of HIV.”
Elliott says that, in Thompson, there’s a “fundamental error of law in the case where you’ve got a sexual assault conviction, even though it was found as a fact that there was no realistic possibility of transmission.”
He says if the ruling stands it represents a “broadening of the scope of HIV criminalization and criminal law, which is already very problematically broad.
“It really introduces not only a terrible additional element of over-breadth in the law, because it basically allows people’s fears and anxieties, whether well founded on any rational assessment of the possible risk or not, to drive potential criminal liability of someone,” he says.
“It also introduces obviously a huge degree of uncertainty in the law, because your potential criminal liability, even if you didn’t pose a realistic possibility of transmitting HIV, would depend entirely upon how your sexual partner might react down the road if they were to learn you were HIV-positive.”
Kyle Kirkup, an assistant professor with the University of Ottawa Faculty of Law and a practising lawyer, says there’s a tension that’s emerged in society between treating HIV non-disclosure as a criminal law issue versus a public health issue.
“I know a lot of HIV-positive people feel very anxious when they’re in a sexual relationship with someone. The concern is always what kind of evidence would they have if someone goes forward to the police and says, ‘This person didn’t disclose status to me,’” he says.
Late last year, the Divisional Court ordered Ontario’s Ministry of the Attorney General to release a set of draft guidelines around prosecuting HIV non-disclosure cases, after the Information and Privacy Commissioner sided with Toronto lawyer Marcus McCann, who filed a Freedom of Information request.
“We require sound prosecutorial guidance to be produced by the Ontario Ministry of the Attorney General to ensure that Crown prosecutors handling HIV non-disclosure allegations are conducted in a manner that is truly in line with current up-to-date science as well as human rights principles,” says Peck.
A spokeswoman for Ontario’s Ministry of the Attorney General says “prosecutions involving exposure to HIV are complex and engage a number of legal and scientific issues.
“In these cases, prosecutors in Ontario follow the direction of the Supreme Court of Canada as set out in R. v. Mabior. MAG-Criminal Law Division has a group of experienced prosecutors who provide advice on HIV exposure cases,” said Emilie Smith in an email statement.
“The evolving common law approach set out by the Supreme Court in R. v. Mabior allows for developments in science to be considered.”
A spokesman for the federal department of justice said last December that the minister of Justice announced her plans to work with provinces and territories on examining “the criminal justice system’s response to non-disclosure of HIV status.
“That work, which involves a broad review of the criminal law, the role of public health, the applicable medical science and current charging and prosecutorial practices, is underway,” said the spokesman.