Law Times

Law Times • sepTember 11, 2017 Page 9 www.lawtimesnews.com Ruling reinforces stigma around HIV, say groups Groups intervene over sexual assault convictions BY GABRIELLE GIRODAY Law Times H uman rights organiza- tions are intervening in an appeal by an HIV- positive man convicted of two counts of sexual assault causing bodily harm. Ryan Peck, executive direc- tor of HIV & Aids Legal Clinic Ontario, and Richard Elliott, ex- ecutive director of the Canadian HIV/Aids Legal Network, say their organizations are interven- ing in an upcoming Nova Scotia Court of Appeal case. In December 2011, Claude Allan Thompson 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 Thompson for two counts of aggravated sexual assault. In 2016, in the Supreme Court of Nova Scotia, Thompson was acquitted of those charges. How- ever, 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 prose- cutors in Ontario could take the same approach," says Peck. "Currently, aggravated sexual assault is the charge being used even when the risk of HIV trans- mission is effectively zero." Justice Suzanne Hood said that while Thompson had raised a reasonable doubt about the "re- alistic possibility" of transmit- ting HIV to the two complain- ants, he caused psychological harm to both. "Fraud can vitiate consent. . . . The dishonest act, failure to dis- close, has been established. The second requirement is depriva- tion; 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 defi- nition of bodily harm includes "psychological harm" and that both complainants experienced anxiety or stress and went for HIV testing after finding out Thompson was HIV-positive. "I conclude this is not harm of a trif ling 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 re- quirement 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 suf- fered psychological harm within the meaning of bodily harm," added the ruling later. Legal organizations say Thompson's convictions are based on legal errors that "en- courage the further, discrimi- natory over-extension of the criminal law and reinforce mis- information and stigma regard- ing 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 as- sault of which to be convicted," said the interveners' factum. The interveners argue the judge erred in convicting Thompson of any sexual assault offence because there was no re- alistic possibility of HIV trans- mission. "[The judge] based this con- viction solely on the fact that the two complainants testified that they had experienced stress and anxiety about the possibility of contracting the virus after learn- ing that the Appellant was HIV- positive at the time of their single sexual encounters," says the fac- tum 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 sex- ual 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 transmis- sion 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 en- counter with the second com- plainant, but there was rea- sonable doubt if Thompson 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 pre- cludes a realistic possibility of transmission of HIV." Elliott says that, in Thomp- son, 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 criminaliza- tion and criminal law, which is already very problematically broad. "It really introduces not only a terrible additional element of over-breadth in the law, be- cause it basically allows people's fears and anxieties, whether well founded on any rational assess- ment of the possible risk or not, to drive potential criminal li- ability 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 possibil- ity 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 soci- ety 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 sta- tus to me,'" he says. Late last year, the Divisional Court ordered Ontario's Min- istry of the Attorney General to release a set of draft guidelines around prosecuting HIV non- disclosure cases, after the Infor- mation and Privacy Commis- sioner sided with Toronto lawyer Marcus McCann, who filed a Freedom of Information request. "We require sound prosecu- torial 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 On- tario's Ministry of the Attorney General says "prosecutions in- volving 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 Can- ada as set out in R. v. Mabior. MAG-Criminal Law Division has a group of experienced pros- ecutors who provide advice on HIV exposure cases," said Emi- lie 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 territo- ries 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 prosecuto- rial practices, is underway," said the spokesman. LT Ryan Peck says an upcoming appeal of criminal convictions by an HIV-positive man in Nova Scotia is relevant to the rest of Canada. FOCUS I know a lot of HIV-positive people feel very anxious when they're in a sexual relationship with someone. Kyle Kirkup Untitled-3 1 2017-09-06 2:10 PM

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