Former Barrie, Ont. woman's conviction for HIV non-disclosure overturned
A former Barrie, Ont. woman has won her case in the Ontario Court of Appeal after she made international headlines nearly a decade ago for not telling her sexual partner she was HIV positive.
In 2013, Jennifer Murphy was convicted of aggravated sexual assault for HIV non-disclosure. She was sentenced to more than three years in prison, and her name was added to the national sex offender registry for life.
At the time it was generally understood that a person did not have to disclose if they had a low viral load and used a condom.
In Murphy’s case, a condom was not used, but testing showed that her viral load at the time was undetectable.
She was acquitted on Aug. 11 based on fresh expert evidence testifying that meant she posed zero risk of transmission as she was on antiretroviral medication.
“This case is an important significant milestone in the fight against HIV criminalization,” said India Annamanthadoo, a policy analyst with the HIV Legal Network and member of the Canadian Coalition to Reform HIV Criminalization. “It proves what community advocates have been saying for years that HIV non-disclosure laws in Canada are unscientific and discriminatory.”
Last month, the coalition released its second consensus statement calling for changes to the Criminal Code, noting criminal law must only be used as a last resort and limited to cases of actual intentional transmission of HIV.
“It’s the product of extensive community consultation across Canada and what we found out in this consultation is the community is in support of urgently needed law reform on the issue of HIV non-disclosure,” Annamanthadoo said.
The statement describes Canada as a “global hotspot” for prosecutions, saying there have been more than 220, pointing to a patchwork of policies across the county.
“What it means is that a person living with HIV in one Canadian jurisdiction faces a different criminal law than someone living in another jurisdiction,” said Annamanthadoo.
Advocates say Murphy’s case opens the doors for others, like Chad Clarke, who spent more than three years in prison for HIV non-disclosure, with his name added to the national sex offender registry.
“When my charges were being heard, I was undetectable,” said Clarke. “I am still looking over my shoulder. I feel like I’m still doing time even though I’m back out in society. It doesn’t allow me to be me.”
As part of her argument, Murphy’s lawyer asked the court to create a new standard in which there is no “realistic possibility of transmission”: specifically when a person has a suppressed viral load and is on antiretroviral medication.
However, the court declined to make that judgment, saying in its decision, “the dynamic environment of a trial court is better-suited to ensuring that a factual record is sufficient to decide the issues to be decided.”
The decision comes as the federal government announced last month that it would hold consultations with key stakeholders in October on how to modernize HIV-non-disclosure laws.
In a statement, Minister of Justice David Lametti told CTV News, “Our government is committed to challenging and reducing the stigma and discrimination associated with HIV and AIDS by working with provinces, territories, and stakeholders to consider evidence-based changes to the justice system. Progress on this important issue is possible because of the hard work of advocates who have pushed for change.”
Clarke says he wants to see a Canada that is not only HIV-free but free of discrimination and prosecution.
“My children don’t know a world where there hasn’t been HIV or AIDS in the world, and they don’t need to see people go to jail because they have a hidden disability,” Clarke said.
“Nobody goes out and maliciously tries to pass it on. We need to do better, and I think Canada can do better,” he concluded.
Barrie woman sentenced to 39 months for secret HIV-positive sex
Barrie’s Jennifer Murphy was sentenced to 39 months Friday for having unprotected casual sex without telling her partner she is HIV-positive.
Justice Gregory Mulligan accepted a joint submission from the defence and Crown, which will give the 40-year-old woman credit for 15 months she has already served while her case worked its way through the courts.
'Extremely low' chance of getting HIV through oral sex: Expert
You have a better chance of having a piano fall on your head than you do contracting HIV through oral sex, an HIV expert has testified. Jennifer Murphy, 40, is charged with three counts of aggravated sex assault after allegedly having sex with three men and not disclosing her HIV. She was caught when a police officer came upon her Sept. 13, 2011.
A contentious issue that in the first incident, only oral sex took place. The alleged victim, testified he met Murphy at a convenience store in downtown Barrie, Ont., and drove her to a remote area and performed oral sex on her for $20. Various members of HIV and AIDS organizations protested on Monday, the first day of the trial, calling the case a witch hunt – insisting HIV carriers should not be dragged through court for having oral sex.
Dr. Irving Salit, of the HIV clinic at Toronto General Hospital, testified Tuesday the man who performed oral sex on Murphy has an very low chance of becoming infected with her virus.”You have a better chance walking down the street and getting hit by a piano,” said Salit. “It’s probably not zero but it’s extremely low,” said Salit.
The Supreme Court of Canada has recently ruled that HIV carriers are legally obliged to disclose their infection to sex partners unless they are on anti-viral medication and use a condom. The ruling does not address oral sex. In that sense, this trial could be a landmark case, depending on the verdict.
Eight years ago, Murphy hit the headlines after having unprotected intercourse with a Base Borden soldier in 2005. She was convicted and sentenced to house arrest.
Stop HIV witch hunt: protesters
Wearing “HIV Positive” T-shirts, AIDS Action Now activists protested outside the Barrie courthouse yesterday, demanding aggravated sexual assault charges against Jennifer Murphy be dropped. “HIV is not a crime,” they shouted, with some carrying placards saying “Stop the Witch Hunt.
Speaking outside the courthouse, Richard Elliott called the laws governing HIV-related sex assault cases “archaic.” People living with HIV face criminal prosecution for not disclosing the disease even if the risk of transmission is extremely low, such as in oral sex, he said. “The courts are sticking their heads in the sand,” he said. “We want to see the Crowns stop prosecuting these cases, especially since the risk of transmission is extremely low.”
Murphy was charged with three counts of aggravated sexual assault for failing to disclose her medical condition to men with whom she had casual sex in September 2011. Inside the court, defence lawyer Angela McLeod said Murphy’s HIV levels were so low at the time that they were medically undetectable. “Was there actually a risk to these men? That’s where much of this case will lie.”
Court heard Murphy had pleaded guilty to not disclosing that she was HIV positive in a similar case in 2005. The judge must still rule if that will be admissible as “prior discreditable conduct” evidence. In her opening address, Crown attorney Bhavna Bhangu argued Murphy should have known to disclose her condition after pleading guilty to the same charge in 2005.
But McLeod said advances in HIV medicine since 2005 have been able to suppress the virus to the point Murphy’s condition was virtually inactive so there was no need to disclose. Activists want the government to strike laws that say HIV carriers must wear condoms during intercourse or use “barriers” during oral sex, even if the virus is undetectable. “The risk with oral sex is so low that there should be no requirements,” Elliott said outside the courthouse.
One of the three men took the stand yesterday and said he would not have performed oral sex on Murphy if he had known she was HIV positive. The man was never diagnosed with HIV. Murphy was charged after police caught her having sex with the man in a public park. When police learned she was HIV positive, they charged her and put out a media release looking for more victims. At least two other men came forward. During the police interview, Murphy asked an officer, “Can you please tell me how having oral sex is aggravated sexual assault?”
Meanwhile, Bhangu said the Crown’s case is not about morality. “It’s about whether she has good judgment,” she said. “People may not like it, but it’s still the law of the land.”
Activists gather to protest trial of woman with HIV facing criminal charges
AIDS activists, feminists and legal experts gathered outside a Barrie courthouse on Monday to protest what they say is the unjust treatment of Jennifer Murphy. Murphy is on trial after she was charged with aggravated sexual assault for allegedly having sex with three men without disclosing her HIV status.
AIDS activists are calling for a dismissal of the charges against Murphy, condemning it as a ‘witch-hunt’ against people living with the virus, but are also asking the attorney general to review guidelines for charging and prosecuting HIV non-disclosure cases. Jessica Whitbread with Global Chair of the International Community of Women with HIV/AIDS is living with HIV herself and said she was “shocked and horrified” when she learned of the charges. “When I heard about this case, I started to cry,” Whitbread said to a crowd gathered at the courthouse.
Following a ruling last year by the Supreme Court of Canada, the law states a person can be convicted for not disclosing HIV when there is a realistic possibility of HIV transmission. The law is still unclear on all sexual acts except intercourse. Because the law is open to interpretation, others living with HIV may find themselves in Murphy’s shoes, Whitbread said. “The onus (to disclose) is always on the positive person,” she said.
A ruling against Murphy, in this case may clarify the law and broaden the scope to include oral sex. Scientific evidence has shown there is virtually no risk of transmission associated with oral sex and therefore should not meet the legal criteria for a realistic possibility of HIV transmission.
“This trial shows just what mischief and injustice results from bad laws poorly interpreted by overzealous prosecutors in a climate of misinformation, stigma and prejudice,” said Tim McCaskell of AIDS Action Now, in a press release. Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said guidelines must be developed inclusively, with people with HIV, and HIV organizations at the table.
Murphy’s defence lawyer, Angela McLeod, said she was pleased with the attendance at the protest. “It gives a face to HIV and stands up for the fact that people with HIV aren’t people you shouldn’t love or you shouldn’t make love to,” she said.
Simcoe Article: Trial still on for HIV-positive woman
BARRIE – Defense lawyer Angela McLeod is “baffled” that a Crown attorney still wants to continue with charges against an HIV-positive woman. “In the light of the science, I’m overwhelmingly disappointed,” said McLeod. McLeod had postponed a September trial date against Jennifer Murphy because she was waiting for a Supreme Court of Canada appeal that dealt with HIV-positive sex charges.
Simcoe Article: HIV-positive woman waits for new trial date
Jennifer Murphy is HIV-positive and is facing charges of aggravated sexual assault stemming from September 2011. She has been on the run from police since she was granted bail in July. Her lawyer Angela McLeod McLeod says Mabior doesn’t apply to Murphy’s case. McLeod said the ruling only addressed sexual intercourse when a man is HIV-positive. It didn’t talk about an infected woman having sex, or other sexual acts between couples, said McLeod. She said Murphy is facing charges in reference to performing and receiving oral sex.
DiManno: Woman's case raises questions about Supreme Court's HIV ruling
ARRIE, ONT.—There was intercourse with one man.
There was fellatio with a second man.
There was cunnilingus with a third man.
For each act, Jennifer Murphy was charged with aggravated sexual assault.
She is HIV-positive, accused of having unprotected sex with the three males.
Until a week ago, she was also on the lam — twice disappearing while on bail with strict conditions attached. Police picked her up last Thursday at an abandoned house in Toronto.
This is either an incorrigible middle-aged woman putting her unsuspecting sex partners at risk. Or — by her own earlier assertion (“a survivor, not a victim”) — a self-styled activist against HIV discrimination, an individual who merely wishes to lead a relatively normal life, not hounded by cops and prosecutors.
But little about Murphy’s life has been normal.
In 2005 she gained notoriety in a high-profile case, convicted of having unprotected sex with two soldiers from CFB Borden and failing to disclose her HIV status to them. Such was the alarm triggered by Murphy’s arrest that soldiers from the base area were urged to seek medical attention if they suspected they’d had sexual relations with the accused.
Murphy was found guilty, sentenced to one year of house arrest by Superior Court Justice Michelle Fuerst, and ordered to return to her home province of Newfoundland once the sentence had been completed.
Instead, according to police, she returned to the Barrie area.
In 2007, she was charged again with aggravated sexual assault, accused of having sex with a local man and not telling him of her illness. Murphy insisted the fellow knew about her health status and a condom had been used.
HIV woman out on bail; sought by cops
An HIV-positive woman facing sexual assault charges – and who had left the custody of Elizabeth Fry Society – is back out on bail and again wanted by Barrie police. Jennifer Murphy, 39, of no fixed address, was arrested and charged with three counts of aggravated sexual assault last September after allegedly having unprotected sex with three men – the first on Aug.
