Canadian judge rules that insertive unprotected anal sex does not create a 'significant risk of serious bodily harm'

Edwin J. Bernard
Published: 12 May 2010

A Canadian judge has ruled for the first time that an HIV-negative person is not placed at 'a significant risk of serious bodily harm' if they are the insertive partner in unprotected anal intercourse with an HIV-positive man.

According to a statement from the Canadian HIV/AIDS Legal Network this "reinforces the basic point that not every risk of transmission will be considered 'significant', and illustrates the importance of ensuring that courts consider carefully the scientific evidence before them in determining when there is a 'significant risk' of harm, rather than simply criminalising non-disclosure in all circumstances."

With close to 110 prosecutions since they began in 1989, Canada is second only to the United States in terms of absolute numbers of criminal prosecutions for both sexual and non-sexual HIV exposure. Transmission need not occur – nor be proven – to obtain a successful prosecution. The number of prosecutions has increased in recent years, averaging around ten annually.

Prosecutions are possible under a broad range of existing laws including assault, sexual assault, attempted murder and, in a groundbreaking case last year, even murder.

A 1998 Canadian Supreme Court ruling (R v Cuerrier) established that a person who knows they are living with HIV has a duty to disclose their HIV-positive status before engaging in conduct that poses a “significant risk” of exposing another person to the virus.

Non-disclosure (regardless of whether it is active deceit or as a result of no discussion of HIV risk) is treated in Canada as fraud that invalidates consent to sex and which results in this sexual contact being classified as an assault.

The vast majority of charges and convictions have been against heterosexual men, with around ten cases against heterosexual women, and a further 15 cases against gay or bisexual men.

The two most recent cases heard in Canada have involved sex between gay men.

Last month, in Hamilton, Ontario, a criminal charge of aggravated sexual assault was dropped after the prosecution accepted that the risk of transmission via oral sex was not likely to be significant enough to warrant prosecution.

According to the Canadian HIV/AIDS Legal Network, "the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with [the accused] performing oral sex, rather than receiving it."

The case before the courts in Vancouver, British Columbia hinged on how many times an HIV-positive gay man's boyfriend had insertive, unprotected anal sex with him, and whether the risk of him acquiring HIV was 'significant'.

Full details of each day of the court case were reported in a blog on Canada's gay and lesbian news resource, Xtra.ca.

Both sides accepted that the accused had failed to disclose his status, although there had been several discussions around HIV-related risk and an agreement to practise safer sex from the start of the relationship. The accused testified that he had been diagnosed HIV-positive two weeks prior to meeting the complainant and hadn't been ready to disclose his status at that point.

"I was still dealing with social stigma, personal prejudice; I was mentally a mess," he told the court.

The prosecution's expert witness, Dr Richard Matthias, testified that the per-act risk of HIV transmission for the insertive partner was similar for both unprotected anal and vaginal intercourse and estimated the risk to be 0.04%, or 4 in 10,000.

Justice Lauri Ann Fenlon ruled that unprotected sex took place three times, and that the cumulative risk – 12 in 10,000 – did not reach "the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault."

An equally important part of Justice Fenlon's decision was that she found the harm of HIV infection to be less than it was perceived to be in 1998.

"It's no longer the case that people infected with HIV will develop AIDS and die prematurely," she said. "HIV, while still a deadly virus, can generally be treated and held in check."

This is relevant, explains the Canadian HIV/AIDS Legal Network, which worked closely with defence counsel Jason Gratl and provided expert testimony at trial, "because, as the severity of the possible harm decreases, the higher the risk of harm must be in order to warrant criminal prosecution."

Prior to releasing the defendant, Justice Fenlon highlighted the difference between unethical behaviour and an illegal act.

"This verdict should not be understood to mean that the court condones the behaviour of the accused," she stated.

"He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk. But not every unethical act invokes the heavy hand of the criminal law."

The Canadian HIV/AIDS Legal Network notes that the "judgment is unusual" and calls for prosecutorial guidelines similar to those produced by the Crown Prosecution Service in England and Wales to clarify when criminal charges may apply in Canada.

Currently, rulings are "inconsistent, and hence unfair" because "in numerous other cases, people living with HIV have previously been convicted for unprotected vaginal or anal sex without disclosing their status."

They add that "it would be unwise to assume that, because of this single ruling by a B.C. trial court, there is no need to disclose known HIV status when having unprotected sex."

Only one other jurisdiction has provided a similar ruling on the per-act risk of unprotected anal sex. However, the 2005 ruling from the Supreme Court of the Netherlands gave much weight to expert medical evidence that successful antiretroviral therapy leads to a decline in viral load. (The defendant in the Vancouver case was not on antiretroviral therapy). It found that the defendant was not 'infectious enough' to cause the 'considerable chance' that he could infect the complainant during unprotected anal sex, reversing lower court rulings, rendering the defendant innocent of manslaughter and attempted aggravated assault.