OTTAWA, October 8, 2012, (LifeSiteNews.com) - In a landmark decision last Friday, the Supreme Court of Canada ruled that people who are HIV-positive do not need to tell their sex partners they have the disease, as long as they have low levels of the virus and use a condom during sexual intercourse.
The 9-0 ruling says that the “realistic possibility of transmission of HIV is negated” if the infected person has a “low viral load and uses a condom”, superseding a 1998 decision.
Under the previous law, HIV-positive people who did not tell partners they had the virus could be charged with aggravated sexual assault, with a maximum penalty is life in jail.
According to a Canadian Press report, Chief Justice Beverly McLachlin, well known for activism on Canadian social issues, questioned prosecutors whether a requirement to disclose the disease to sex partners places too onerous a burden on HIV-positive people in light of medical advances in treatment of the incurable infection.
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Friday’s unanimous ruling came from appeals of two separate cases involving convictions under the previous law.
In 2008, former Winnipeg resident Clato Lual Mabior was charged with nine counts of aggravated sexual assault based on his failure to disclose his HIV-positive status to nine plaintiffs, one of whom was reportedly only 12 years old before having sex with them.
The trial judge convicted him on six of the counts and acquitted him on three, sentencing him to 14 years in prison. An appeal court overturned four of the six convictions, on the basis that he had sexual intercourse using a condom and had a low viral load, which negated any risk of harm. The Crown appealed the acquittals, although Mabior was deported to Sudan in February 2012 after serving a reduced sentence.
In the other case, a Quebec woman, identified only as “D.C.” in court documents because of a publication ban, was convicted of sexual assault and aggravated assault for failing to disclose her HIV status to her former spouse. Her convictions were later overturned the Quebec Court of Appeal based on the fact that medical treatment had reduced her viral load to a negligible level.
The Supreme Court concluded in Mabio’s case “no realistic possibility of transmission was established,” but added that “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.”
The Crown’s appeal of D.C.‘s acquittals was dismissed by the Supreme Court with the reasoning that, “To convict, it was necessary to establish beyond a reasonable doubt that D.C. failed to disclose her HIV status to the complainant, where there was a significant risk of serious bodily harm.”
“The critical issue on the trial,” the court ruled, “was therefore whether a condom was used on the single pre-disclosure act of sexual intercourse between the complainant and D.C.”