Supreme Court: Failure to disclose HIV to sex partners not always a crime


SLM
#1
Supreme Court: Failure to disclose HIV to sex partners not always a crime

CTVNews.ca Staff
The Supreme Court of Canada has ruled it is not always a crime for people with HIV to not disclose their HIV status to their sex partners -- as long as they have a low level of the virus and wear a condom.

The ruling still leaves open the possibility that charges could still be laid against those who are reckless and who fail to take steps to avoid transmitting the potentially fatal virus.
In deciding two cases -- one in Manitoba and one in Quebec -- the court clarified a ruling it made in 1998 on the issue of HIV disclosure. Under that ruling, those who failed to disclose their HIV status could be charged with sexual assault or aggravated sexual assault if there was "a significant risk of bodily harm."
But the court said Friday there have been huge advances in HIV management since then. Those advances include antiretroviral medications that can keep levels of the virus so low, they are almost undetectable.
The court said as long as the HIV carrier has a "low load" of the virus and wears a condom, they are not legally obligated to inform their sex partners of their status. It said convictions would be warranted only if there were "a realistic possibility" of transmission.
"On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused's viral load was low at the time of intercourse and that condom protection was used," Chief Justice Beverley McLachlin wrote on behalf of the court.
The court left open the possibility of further refinements to the law in the future.
"However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play."
Prosecutors from both provinces wanted the court to rule that all HIV carriers should be legally compelled to inform their partners -- regardless of the risk of passing on the virus.
Both sides of the debate agreed that the 1998 ruling has been interpreted in wildly different ways by judges across the country, and wanted the court to offer guidance on courts should proceed with such offences.
The cases before the court
In Friday's ruling, the Court acquitted a Quebec woman of aggravated assault after she had sex with her former spouse while her viral load was undetectable. The court agreed with a lower appeal court ruling, which said she had not exposed the man to "a significant risk of serious harm."
But the court restored four aggravated sexual assault convictions against a Manitoba man named Clato Mabio, who had sex with four women and girls because although his viral load was thought to be low, he didn't wear a condom in many of the sexual encounters.
"Here, the four complainants all consented to sexual intercourse with M, and testified that they would not have had sex with him had they known he was HIV positive," the court noted.
But it dismissed the charges laid involving a fifth woman, because in her case, he did wear a condom.
None of the women and girls contracted HIV.
HIV advocates disappointed by ruling
Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Action Network says the ruling is not good news for those living with HIV.
"The court on the one hand is saying we're not going to use the criminal law to criminalize every single risk, however small. But in effect, that is what they have done," Elliott told CTV News Channel after the ruling.
Elliott says the risk of a man transmitting HIV to a woman during unprotected ******l sex is estimated at 0.08 per cent. Those on antiretroviral medications have only a one in 100,000 per cent risk, or 0.00001 per cent, he says.
"Should we be using aggravated sexual assault -- this is the law of rape - when we're talking about a risk that is somewhere in the order of one in 100,000?" he wondered.
He added that it should not be left to police and the courts to try to prevent the spread of HIV.
"Let's look at the evidence that shows that having this kind of overly broad use of the criminal law actually doesn't lead to safer sex it doesn't lead to disclosure," he said.
The only things that do work, Elliott said, are practising safer sex and having a lower viral load.
"We can't expect after-the-fact criminal prosecutions are going to protect people. People have to take a certain amount of personal responsibility here," he said.


News: CTV Content Posting


Supreme Court: Failure to disclose HIV to sex partners not always a crime | Sympatico.ca News


It may not be automatically criminal, it may be a miniscule risk given safe sex methods practices but I still think it's incredibly unethical not too disclose. If you know, you disclose, period, end of story. If you don't know and have multiple partners, then you get yourself tested on a regular basis.

As to the consultants argument about using criminal law, specifically aggravated sexual assault, to force appropriate social performance out of people, isn't that what the law is all about anyway? Conceivably it may need it's own criminal code provision, but behaviour modification is not outside the purpose of criminal code, just the opposite I'd say.
 
coldstream
+1
#2
It just shows you what a band of nitwits inhabit the SCOC. We've created a judicial tyranny with the Charter of Rights and Freedoms.. of a band of the moral and intellectual mediocrities. None moreso than that turgid little witch of Chief Justice.. Bev MacLaughlin.

Condoms are designed to prevent pregnancy, and even then are unreliable. They are almost completely ineffective in preventing HIV infection over the long term. The human sperm cell, for which the condom is designed, is 500 times larger than HIV virus. It can be spread through leakage, failure the condom, overflow, or indirect transmission. In fact it can just pass through the membrane of condoms unobstructucted.

And any HIV virus can cause AIDS.

This is the straight dope on HIV and Condoms.

Quote:

American Chemical Society - the rubber comprising latex condoms has intrinsic voids [pores] about 5 microns (0.00002 inches) in size. Since this is roughly 10 times smaller than sperm, the latter are effectively blocked.... Contrarily, the AIDS virus is only 0.1 micron (4 millionths of an inch) in size. Since this is a factor of 50 smaller than the voids inherent in rubber, the virus can readily pass through.

Last edited by coldstream; Oct 5th, 2012 at 01:24 PM..
 
#juan
+1
#3
Without a doubt, the most idiotic decision in a very long time. What the hell were they thinking of? There are other things to think of
here. For instance, would everyone want to start a relationship with someone who had AIDS ?
 
#juan
+1
#4
Quote: Originally Posted by #juanView Post

Without a doubt, the most idiotic decision in a very long time. What the hell were they thinking of? There are other things to think of
here. For instance, would everyone want to start a relationship with someone who had AIDS ?

I didn't finish my thought. Shouldn't it be a personal choice whether to start or not start relationship with a person
with AIDS?? Holding back the information is criminal.
 
Tonington
+1
#5
Quote: Originally Posted by coldstreamView Post


Condoms are designed to prevent pregnancy, and even then are unreliable. They are almost completely ineffective in preventing HIV infection over the long term.

That is a load of crap.
 
wizard
#6
... the supreme court is dying. and nobody elected them to make law ...
 
SLM
+1
#7
Quote: Originally Posted by ToningtonView Post

That is a load of crap.

Of course it's a load of crap. But it does fit in nicely with the whole "decay of society" and "weirdly subjective morality" which is his usual agenda.
 
Tonington
+2
#8  Top Rated Post
Quote: Originally Posted by SLMView Post

Of course it's a load of crap. But it does fit in nicely with the whole "decay of society" and "weirdly subjective morality" which is his usual agenda.

Subjective reality is one of his traits as well. The overarching one I'm afraid.
 
wizard
#9
... of course it's morally wrong to fail to disclose that you have HIV to someone you have sex with. this ruling proves that the supreme court just isn't up to the task of dealing with these kinds of issues ...

... they should just stay out of these things, all other issues too. we can handle things ourselves ...
 
WLDB
#10
Quote: Originally Posted by coldstreamView Post


Condoms are designed to prevent pregnancy, and even then are unreliable.

I'm living proof of this. I don't trust them 100% but they're better than nothing.

Personally I think the only case in which it wouldnt be a crime is if the infected person does not know they are infected. Otherwise full disclosure about their health and the risks the person is taking should be made. I don't care how small the risk it is there and all should be fully informed of the risk.

Quote: Originally Posted by wizardView Post

... the supreme court is dying. and nobody elected them to make law ...

They dont. They interpret it. If the people and parliament do not like it they have the power to change it with legislation.
 
wizard
#11
Quote: Originally Posted by WLDBView Post

If the people and parliament do not like it they have the power to change it with legislation.

... nah, the lawyers can choose any law and go to court and strike it down any time they want. prostitution laws, money laundering laws and right to die laws have all been struck down by the bar recently and there's nothing the citizens of canada can do about it ...
 
gerryh
+1
#12
Quote: Originally Posted by #juanView Post

I didn't finish my thought. Shouldn't it be a personal choice whether to start or not start relationship with a person
with AIDS?? Holding back the information is criminal.


Not talking about AIDS, talking about HIV. There is a difference. If you don't know what that difference is....google is your friend.
 
In Between Man
#13
Quote: Originally Posted by wizardView Post

... nah, the lawyers can choose any law and go to court and strike it down any time they want. prostitution laws, money laundering laws and right to die laws have all been struck down by the bar recently and there's nothing the citizens of canada can do about it ...

This is why Supreme Court Justices should be elected by the people.
 
taxslave
+2
#14
Quote: Originally Posted by In Between ManView Post

This is why Supreme Court Justices should be elected by the people.

And exactly how is an elected judge to be expected to make a non political decision? They will be pandering to their special interest groups just like politicians are.
 
shadowshiv
#15
I disagree with this decision 100%. I swear that they make their decisions by throwing a dart at a list and whatever option it hits is the one they go with. Either that, or they decide on the option that the majority of Canadians would disagree with. I find it idiotic that we CANNOT vote these "judges" out of their position, as they wield far too much power without any accountability.
 
SLM
+2
#16
Quote: Originally Posted by shadowshivView Post

I disagree with this decision 100%. I swear that they make their decisions by throwing a dart at a list and whatever option it hits is the one they go with. Either that, or they decide on the option that the majority of Canadians would disagree with. I find it idiotic that we CANNOT vote these "judges" out of their position, as they wield far too much power without any accountability.

I have to disagree with you there, because then we'd have judges with more interest in being re-elected than upholding the constitution and the charter. Even the U.S., where they do elect judges to the bench, appoints their Supreme Court justices don't they?

No I think the solution lies in the MPs, who are elected and accountable, drafting better legislation that fits the "crime". I'm not sure that, in all cases, aggravated sexual assault fits this particular crime.
 
taxslave
#17
Quote: Originally Posted by shadowshivView Post

I disagree with this decision 100%. I swear that they make their decisions by throwing a dart at a list and whatever option it hits is the one they go with. Either that, or they decide on the option that the majority of Canadians would disagree with. I find it idiotic that we CANNOT vote these "judges" out of their position, as they wield far too much power without any accountability.

I might go along with voting them out but not in. Or making it a term position, not till death do us part.
 
The Old Medic
#18
Parliament can override this decision, if they choose to do so.

Put pressure on your MP to pass a bill making it a Criminal Offense to have sex with anyone without notifying them that you are HIV Positive. They can tailor a Bill to overturn this decision.
 

Similar Threads

51
U.S. Supreme Court has ruled....
by B00Mer | Sep 12th, 2011
2
All the way to the Supreme Court again...
by CDNBear | Dec 29th, 2006
11
US Supreme Court moves even further right.
by Hard-Luck Henry | Dec 15th, 2005
no new posts