A woman in Barrie who is living with HIV is in the process of being tried for having sex with three different men without informing them of her HIV status. She has been charged with aggravated sexual assault, which is a serious offence in the Criminal Code that holds a potential for several years in prison and a lifetime designation as a sex offender. However, the woman's case brings up several considerations.
A Supreme Court of Canada case in the fall of 2012 opened up the door for people who have HIV to be charged with sexual assault, even if it's not likely that they will not transmit the disease. HIV groups criticized the court for creating an extremely wide scope for criminal prosecution even when it contradicts scientific evidence about the disease. For example, people can still be charged if they took highly effective precautions to protect their sexual partner, did not intend to harm their partner and did not transmit the disease. The decision also is criticized for its ambiguity, causing a problem for citizens who don't know which sexual acts may trigger prosecutions.
One primary factor in the woman's case is that she had an undetectable viral load. The viral load refers to the amount of the HIV virus that is within the person's bodily fluids. This means that the woman would have had a zero or very low chance of passing on the disease. Additionally, none of her partners contracted the disease, the sexual encounters were brief and there was no allegation of malicious intent on the woman's part.
A Toronto criminal defence lawyer could help individuals who may be facing unfair criminal charges that are based more on mandatory prosecutions than on logic. They may be able to negotiate a plea agreement for their clients based on scientific evidence or argue against the practicality of a particular prosecution.
Source: Brampton Guardian, "Woman living with HIV on trial in Barrie for aggravated sexual assault", Richard Elliott, July 10, 2013