11 Oct (CANADA) – Since 1998, the law on HIV in Canada has been based on the Cuerrier precedent. In October, 2012, the Supreme court reviewed two cases and Cuerrier, and made only slight adjustments. Someone who has sex without revealing their positive HIV status is guilty of aggravated sexual assault, one of the most serious crimes in Canada, unless they both use a condom and have a low viral load.
There is no law governing HIV transmission in Canada, so the laws of fraud are used instead. If you believe in the HIV=AIDS=Death dogma this makes some sense. Consent to a transaction, such as sexual intercourse, is waived if someone is withholding a vital fact. Sex without consent is sexual assault. And, since HIV is viewed as deadly, sex without consent and a deadly weapon is aggravated sexual assault. In the case of Carl Leone, this landed him a prison sentence of 21 years (including 3 years of house arrest before his conviction).
Many people are judgmental about this and believe that even if the HIV=AIDS dogma is not proven there is no harm in revealing your HIV status. But there objectively is. People have been murdered when a lover discovered their HIV status (e.g. in Dallas and Winnipeg, Canada). They may tell someone who then freaks out and spreads word around, resulting in a community shunning the person. People may assume that they are homosexual, a drug user or highly promiscuous.
One of the cases reviewed by the Supreme Court, that of a woman known only as DC, illustrates the dilemma. She was convicted on the basis of aggravated sexual assault on the basis of one incidence of sex with a man that the judge believed was without a condom. Soon after she revealed her HIV status to the man and he left her. But then, of his own volition, he came back, and had often unprotected sex with her during their relationship of the next four years. When they split up and she came back to the house which he refused to leave to collect her belongings, he assaulted her and was convicted. Only then did he make a complaint about the arguably unprotected sex from four years ago. She was convicted of sexual assault and aggravated assault by one judge, this was overturned by a court of appeal, which was reaffirmed by the Supreme Court of Canada.
For more on this article go to Alberta Reappraising AIDS Society