Appeal Court overturns HIV-positive man’s convictions
An Antigonish man who was found guilty of sexual assault causing bodily harm for failing to disclose he was HIV-positive to two women he had sex with has had his convictions quashed and replaced by acquittals.
A Nova Scotia Court of Appeal panel acquitted X last September but released its written decision Thursday.
“The sole issue in this case is whether psychological harm said to have been caused by non-disclosure of HIV status (spoils) consent to sexual activity,” Justice Duncan Beveridge wrote for the panel.
“The short answer is no, it does not.”
X, 45, stood trial in Nova Scotia Supreme Court on two charges of aggravated sexual assault.
The court heard that in December 2011, X had unprotected sex with one of the complainants and wore a condom during intercourse with the other. He claimed he did not ejaculate either time.
Experts testified that the risk of transmission was negligible because X was taking antiviral drugs and had a low viral load.
Justice Suzanne Hood found the Crown had not established a realistic possibility of HIV transmission and acquitted X on both charges.
But the judge accepted the Crown’s submission that the complainants had suffered psychological harm from the uncertainly of not knowing whether the virus had been transmitted. Based on that, she found X guilty of the lesser offences of sexual assault causing bodily harm.
X, a former boxer, appealed the convictions shortly after he was sentenced in 2016 to 30 months in prison, and an appeal hearing was scheduled for last October.
But about a month before the appeal hearing, the Crown conceded that the trial judge had erred in convicting X. The appropriate remedy, the Crown said, was to quash the convictions and enter acquittals.
The three-judge Appeal Court panel was satisfied that the Crown’s concession was correct and immediately entered the acquittals.
The appeal hearing went ahead as scheduled so the parties, which included HIV and AIDS groups as intervenors, could make submissions on the scope of the court’s decision.
“Failure by a sexual partner to disclose that he or she has a sexually transmitted disease is morally reprehensible, but it is not usually a crime,” Beveridge wrote in the decision.
The Appeal Court said the trial judge was “led astray” by Crown counsel, who argued that the emotional turmoil suffered by the complainants could amount to bodily harm and thereby spoil their consent to the sexual activity.
“Emotional stress or upset, even if they could legitimately amount to bodily harm within the meaning of the Criminal Code, are, in the eyes of the law, irrelevant,” Beveridge said.
“This is clear from the careful approach by the (Supreme Court of Canada) to avoid overbreadth and stigmatization of HIV-positive individuals.”
Beveridge said worry, stress and anger are natural emotions upon learning of unwittingly being exposed to HIV.
“But absent a significant risk of serious bodily harm, satisfied by actual transmission or a realistic possibility of transmission, consent is not vitiated,” he said.
Groups intervene over sexual assault convictions
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, X 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 X for two counts of aggravated sexual assault.
In 2016, in the Supreme Court of Nova Scotia, X 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 X 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 X’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 X 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 X 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.
Claude Thompson convicted after failing to disclose HIV-positive status to woman
Thompson convicted of sex assault causing bodily harm for unprotected sex
A Nova Scotia man has been convicted of sexual assault causing bodily harm for having unprotected sex with a woman and failing to tell her he was HIV-positive.
X was charged with sexual assault causing bodily harm involving two women, and was found guilty in both cases.
The charges stemmed from sexual activity he engaged in with the women in December 2011.
The women, who are identified by the initials H.R.H. and M.A.M. in a court decision, knew one another and met X shortly before the sexual encounters.
One woman, H.R.H., testified that she asked X whether he had AIDS. She said he told her he didn’t and she agreed to have sex, providing he used a condom. Because he used a condom, Justice Suzanne Hood of the Supreme Court of Nova Scotia ruled that – based on the expert medical evidence she heard at the trial — there was no possibility X could transmit HIV to H.R.H. So, the judge acquitted Thompson of the charge of aggravated sexual assault involving that woman.
But Hood found X failed to tell the second woman, M.A.M., about his HIV-status and had unprotected sex with her.
Inconsistent testimony
“I cannot conclude that X is a credible witness,” Hood wrote in a decision released Thursday. “His evidence was full of inconsistencies and he admitted that, because of boxing injuries, his memory is not good.”
The women did not learn of the situation until they were contacted by RCMP.
“M.A.M. testified she had one year of testing for HIV,” Hood wrote. “She said it was stressful and she had a fear of the unknown, that is whether she had contracted HIV.”
Hood ruled that even though the woman initially consented to sex, the consent was spoiled by fraud when X failed to disclose his HIV-status.
HIV non-disclosure charges not science-based, doctors say
Editorial comment
Why this Nova Scotia boxer’s acquittal is big news for Canadian HIV criminalization
Mar 20, 2018 – By Niko Bell , Xtra
The case affirms that people with a low viral load are at negligible risk for transmitting HIV
The case of Claude Thompson is an important step forward for HIV law in Canada, but you wouldn’t know it from reading the news.
On Feb 15, the Nova Scotian former boxer was acquitted on two counts of sexual assault causing bodily harm for not disclosing that he had HIV to two female sexual partners.
Thompson’s case is important because it is considered one of the first in Canada to affirm that people with a low viral load are at negligible risk of transmitting the virus even if not using a condom, and therefore do not have a legal duty to disclose their status.
For HIV legal activists in Canada, who have been fighting for recognition that antiretroviral drugs can suppress the infectiousness of the disease, the case is a major victory.
But The Canadian Press story about Thompson’s case did not so much as mention the key issue of viral load, and other stories in the CBC and the Halifax Chronicle Herald skimmed over the issue without a thorough explanation or context.
So to make sense of what just happened in Nova Scotia, here is the Thompson case in context.
When Thompson’s case was brought to trial in the Nova Scotia Supreme Court in 2016, the law, decided by the Supreme Court of Canada in a case called R v Mabior, required people who were HIV positive to disclose their status — unless they had a low viral load and were also wearing a condom — or else face a charge of aggravated sexual assault.
Thompson had sex with two women, both of whom said he did not disclose his status, and one of whom said he did not use a condom.
Thompson’s viral load was more complicated. It had been thoroughly suppressed a few months before he had sex with the two women, but Thompson said his medication had been stolen and it took him a few weeks to get more. In the meantime, his viral load rose from nearly undetectable to low.
In trial, Thompson gave conflicting testimony; from dates and times to whether or not he had flare ups of genital herpes. Justice Suzanne Hood declared him unreliable, and found that he probably had not disclosed his HIV status — as the two women said — and had not used a condom in at least one case. Under Mabior, that should have been enough to convict him.
But at this point, Justice Hood made an important break from Mabior. The most recent science, she said, agrees that people with low viral load, like Thompson, have a negligible chance of actually passing on the virus, even without a condom.
Thompson’s viral load, which was probably hovering somewhere around 1,000 copies of the virus per millilitre of blood, was still too low to be reasonably dangerous. Therefore he was not, Hood said, guilty of aggravated sexual assault.
But then Justice Hood’s judgment took another unexpected tack. Even though she ruled that there was no significant chance of Thompson passing on the virus, the two women had spent months worrying about contracting HIV. Their mental suffering was enough that Thompson should be convicted of assault causing bodily harm for the mental suffering he caused by not disclosing.
When HIV activists, like the lawyers at the Canadian HIV/AIDS Legal Network, heard about Justice Hood’s decision, they were taken aback. Hood’s recognition that people with low viral load were safe was good news, but her final judgment was catastrophic.
If it stood, it would set the precedent that causing someone to worry about HIV would amount to assault even if the sex was, in fact, perfectly safe.
The Legal Network and two other HIV activist organizations immediately signed on as intervenors in an appeal.
On Feb 15, 2018, the HIV campaigners got what they wanted. The Nova Scotia Court of Appeal agreed with Hood that a low viral load removed any substantial risk, but disagreed that simply causing the fear of having contracted HIV amounted to assault. The court acquitted him on both charges.
A Nova Scotia Court of Appeal ruling is not binding in the rest of Canada, but may well be taken into account by other judges in other provinces.
“This is an important case because it rejects this attempt to expand the criminal law even more,” says Nicholas Caivano, an analyst and lawyer with the Canadian HIV/AIDS Legal Network.
“I think if the court had accepted that argument, it would have legitimized that it’s warranted to be so anxious and nervous about HIV that you can criminalize a person for not disclosing their status, even when they have no duty to disclose according to the Supreme Court.”
Thompson’s case is an important step in legal recognition of the medical consensus on HIV transmission, and may signal a sea change in how courts treat HIV disclosure. But now it’s up to journalists to follow the lead of the courts and learn to accurately and completely report the science on HIV.
The courts can stop punishing people who have almost no risk of transmitting the virus, but only good journalism will make Canadians less afraid of it.