Failure to Disclose HIV Not Always Sexual Assault – Eryka Gregory

The Nova Scotia Court of Appeal decision in R v Thompson reaffirms that non-disclosure of HIV-positive status, while morally reprehensible, is not necessarily a crime. Informed consent is the key determination of whether sexual activity between two or more parties constitutes sexual assault under the Criminal Code. The decision in Thompson upholds the high legal threshold of harm required to vitiate consent and render an accused guilty of sexual assault. In the eyes of the law, emotional stress or upset does not amount to harm. This case is a legal victory for the often-stigmatized members of the HIV community who are labelled as dangerous, even when there is no risk of transmission to their sexual partners. For victims of sexual assault, this decision is a step back because it invalidates the very real emotional and psychological harm that victims suffer when a sexual partner does not disclose their HIV-positive status.

In sexual assault cases, establishing whether a party gave consent can be a challenging process for the courts. It is not a simple yes-or-no question of whether a complainant consented to sexual activity. The issue becomes further complicated when a complainant consented to the sexual activity under false pretences created by the accused. Canadian courts have struggled to define when these false pretences amount to vitiating consent. In Thompson, the court held that the psychological harm that resulted from the accused not disclosing his HIV-positive status did not negate consent. The court acquitted the accused of sexual assault as there was no probable risk of HIV transmission to the complainants.

Sex with significant risk of transmission vitiates consent

Claude Thompson was charged with two counts of aggravated sexual assault under section 273(2)(b) of the Criminal Code. Thompson had sexual intercourse with two women while positive with the Human Immunodeficiency Virus (HIV). Neither complainant contracted HIV, but both women experienced psychological distress after the encounter. At trial, Thompson testified that he disclosed his HIV status to both women and wore a condom during the sexual encounters. The trial judge was not satisfied with Thompson’s testimony that he revealed his HIV status to either complainant. Medical evidence suggested Thompson had a low viral count of the virus, making the risk of infection negligible.

The trial judge acquitted Thompson of aggravated sexual assault as the Crown failed to establish a realistic possibility of HIV transmission. Aggravated assault requires proof beyond a reasonable doubt that the defendant’s conduct endangered the complainant’s life. However, the trial judge found Thompson guilty of the lesser charge of sexual assault causing bodily harm; due to the psychological harm the complainants suffered while waiting for their HIV test results. Thompson was sentenced to 30 months incarceration and required to be on the sexual offender registry. Thompson appealed this decision to the Nova Scotia Court of Appeal.

The issue on appeal was whether psychological harm caused by non-disclosure of HIV status vitiates consent. In R v Cuerrier, the Supreme Court of Canada (“the Court”) created a two-part test for vitiating consent. First, there needs to be deceit. Second, there needs to be a deprivation of the complainant’s ability to exercise will over their physical integrity. In the context of an HIV-positive accused, the non-disclosure satisfies the deceit element. The deprivation element would be the actual transmission of the virus or the exposure of the complainant to a significant risk of serious bodily harm via the risk of HIV transmission. In Cuerrier, the court found that the non-disclosure of HIV, coupled with the significant risk of transmission, amounted to vitiating consent.

The Supreme Court revisited the decision in Cuerrier 14 years later in R v Mabior. The Court narrowed the test of vitiating consent and held that disclosure of HIV status was only required if there was a realistic possibility of transmission. In Mabior, the Court found that the accused’s low viral load of HIV and his condom use negates the realistic possibility of transmission. Therefore, consent was not vitiated.

Psychological harm does not vitiate consent

In Thompson, the trial judge found that the non-disclosure amounted to deceit. The psychological harm of worry and uncertainty that the complainants experienced amounted to a deprivation, thereby vitiating consent. The Court of Appeal disagreed and held that “emotional stress or upset, even if they could legitimately amount to bodily harm with the meaning of the Criminal Code, are, in the eyes of the law irrelevant”. The Supreme Court purposefully narrowed the test of vitiating consent to avoid the stigmatization of HIV-positive people. There is a common misconception that those living with HIV pose a threat to others when that is not the case for individuals with a low viral count of the virus.

Beveridge JA, held that, absent a realistic transmission of HIV, psychological harm does not amount to a deprivation that vitiates consent. Claude Thompson was acquitted of the lesser charge of sexual assault causing bodily harm as the Crown could not negate consent.

Balancing interests of persons with HIV and victims of sexual assault

R v Thompson represents the balancing act courts must play when dealing with competing interests and objectives. For the HIV community, this decision is a step forward because it recognizes that having HIV does not automatically make an individual a danger to society. The case garnered support from several intervenors, such as the Canadian HIV/AIDS Legal Network and HIV & AIDS coalition groups from Ontario and Quebec. They supported Thompson’s position that the trial judge made a legal error and feared the consequences the decision would have on people living with HIV. HIV is considered a disability under Canadian Law, which protects those living with the disease from discrimination.

The court in Thompson recognized the disproportionate level of stigmatization that the HIV community faces in society. The appellate decision makes it clear that a low viral count of the virus does not pose a risk of harm to others. However, while the court acknowledged non-disclosure of a sexually transmitted disease is morally wrong, it also acknowledged that this is not enough to find legal culpability. The decision in Thompson does not mean that there will be no criminal liability if an accused knowingly and deceptively spreads HIV or creates a real risk of transmission per the Supreme Court’s decision in Mabior.

On the other hand, sexual assault victims may see the Court of Appeal’s decision in Thompson as a setback. The decision discredits the severe emotional and psychological harm victims experience when a sexual partner does not disclose their positive status of a sexually transmittable disease. In Thompson, both the complainants’ testified that they would not have given consent had they known of the accused’s HIV-positive status. Ultimately, the Nova Scotia Court of Appeal decision found that the right to proper and informed consent, while important, does not warrant a sexual assault conviction for an accused.

Shortcomings of Canada’s current approach

The court’s failure to acknowledge psychological harm as legal harm perpetuates the falsehood that a victim did not experience a sexual assault because there was no physical harm. Perhaps the legislatures are best left to address this issue when there are legitimate competing interests at stake. There should be a more suitable solution that protects victims of sexual assault without unduly discriminating against those living with HIV and other infectious diseases. As the law currently stands, non-disclosure of HIV status will not result in a sexual assault conviction without a significant risk of transmission.