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344:, was charged with criminal negligence causing bodily harm in 1991 after potentially infecting up to 14 women. (He was charged after Ssenyonga, but went to trial earlier.) He was sentenced in 1992 to two-and-a-half years in prison; on a Crown appeal, Mercer's sentence was increased to 11 years. Mercer was released from prison in 2003.
424:, the Court found that "significant risk of bodily harm is negated if (i) the accused’s viral load at the time of sexual relations was low; and (ii) condom protection was used". Many anti-criminalization groups maintain that even this clarification is equally ambiguous without explicitly defining a threshold for low viral load.
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In 2003, Edward Kelly was charged, and convicted of knowingly exposing four women to HIV, and sentenced to three years in prison. In 2004, Jennifer Murphy became the first woman charged in Canada with failing to disclose her HIV status to a sexual partner. She spent one year under house arrest before
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The court also did not rule that any burden of proof exists whether the accused even knew how to protect their sexual partners. While practising safer sex is considered a valid defense, no burden of proof exists whether the HIV-positive partner had ever actually been educated in safer sex practices.
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it would be one thing if we had perfect HIV prevention, and still there were people who were "acting irresponsibly". But we're not in that situation at all. I see the criminalization debate as a red herring — it diverts us from addressing the real problems with prevention, and care. It allows us to
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Harold
Williams of Newfoundland was charged with aggravated assault, and common nuisance in a controversial 2003 decision, which overturned a 2000 sentencing. While Williams knowingly had frequent unprotected sex with a partner, and she became HIV positive, he received a relatively light charge as
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Under
Canadian law, a charge of aggravated assault requires proof that the defendant's actions endangered the life of the complainant, and that the force must have been intentionally applied. Cuerrier, whose case was based on the fact that both women had consented to have unprotected sex with him,
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nondisclosure. After being diagnosed with HIV in 2004, Clato Mabior underwent aggressive antiretroviral therapy, and was adhering to treatment at the time of pursuing sexual relations with multiple partners between 2004 and 2006. Despite intermittent condom use, HIV was never transmitted to his
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partners. Ultimately, the Court convicted Mr. Mabior with six counts of aggravated sexual assault. The Court's vague justification for serostatus disclosure under circumstances that lead to "significant risk of bodily harm" remained a particularly contentious issue in the aftermath of
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the Crown could not provide evidence that she was previously HIV negative. However, the impact of this decision was mitigated as
Williams was separately sentenced to five years imprisonment for having unprotected sex with two other women without disclosing his HIV positive status.
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Generally, legal analysts and HIV educators viewed the decision as "the wrong tool for the job", suggesting that it was an attempt to use criminal law to resolve what is, first and foremost, a public health matter.
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The judges were unanimous in ruling that failure to disclose HIV status constituted fraud, although they differed on how to implement the ruling in law. The majority decision, authored by
Justice
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to protect his partners. Both women later learned of
Cuerrier's HIV status, and Cuerrier was subsequently charged with aggravated assault even though both women subsequently tested HIV-negative.
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lulling sexually active persons into a "false sense of security" that they need not practice safer sex since criminal law, rather than their own sexual behaviour, protects them from HIV risk.
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favoured the specific addition of a clause regarding "deceit about sexually transmitted disease that induces consent" in the legal definition of fraud. In another minority opinion, Justice
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feel like we're solving the crisis by going after these very specific, and very weird situations when we're avoiding the much bigger problems that lead to most HIV transmissions.
378:. He was convicted, on April 4, 2009 of two counts of murder in the first degree, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault.
333:, who was charged with aggravated assault stemming from three sexual encounters in the late 1980s. However, Ssenyonga died in 1993 before a verdict was rendered in his case.
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did not expressly define "significant risk", lower courts inconsistently criminalized HIV-positive defendants based on varied interpretations of the clause. In large part,
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argued that the first, and third criteria set out by Cory should suffice for a conviction; she did not favour a burden of proof whether there was an actual risk of harm.
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The first
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the prospect that criminalizing a failure to disclose one's HIV status will deter sexually active persons from getting tested for HIV in the first place,
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who tested positive for HIV in 1992. He subsequently had sexual relationships with two women, in which he neither disclosed his HIV status nor used
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men, as black men have disproportionately high rates of HIV. One notable scholarly paper on the
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for failing to disclose his HIV status to a sex partner. Smith was found guilty of aggravated sexual assault on
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the charge was withdrawn in 2007, mainly because she had insisted on condom use during the incident.
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African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga
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54:Her Majesty The Queen v. Henry Gerard Cuerrier
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278:the potential of a negative impact on
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491:Sexuality Research and Social Policy
391:African Immigrant Damnation Syndrome
340:Ray Mercer, a 28-year-old man from
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160:McLachlin J, joined by Gonthier J
459:from the original on 2007-05-20.
209:British Columbia Court of Appeal
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269:Canadian HIV/AIDS Legal Network
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171:was a 1998 decision by the
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45:Judgment: December 3, 1998
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359:was also charged with
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102:Claire L'Heureux-Dubé
215:Reasons of the court
372:first-degree murder
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253:Beverley McLachlin
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187:Background
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110:Peter Cory
228:safer sex
65:2 SCR 371
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303:American
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355:player
201:condoms
530:CanLII
441:cbc.ca
422:Mabior
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383:racial
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387:black
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