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UPDATE: Top court decision 'huge setback'

UPDATE: Top court decision 'huge setback'

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Unanimous ruling says condoms no barrier to prosecution for HIV-positive people
Condom use is not enough.

In a blow to the HIV community, the test in criminal cases of nondisclosure will now be "realistic possibility of transmission of HIV,"  a clarification of the more vague "significant risk" test.
 
The unanimous decision also opens the door to prosecutions when the accused had a low viral load.
 
The court ruled that where both a condom was used and viral load is low, the accused should be acquitted. And it ruled that evolutions in science or treatment could change the math.

The ruling stands in contrast to a series of lower court cases in which either low viral load or consistent condom use barred prosecution.
 
The decision, written by Chief Justice Beverley McLachlin, also rules that the math changes depending on the sex act. However, the court did not rule on prosecutions for oral sex.
 
"Drawing the line between criminal and non-criminal misconduct at a realistic possibility of transmission arguably strikes an appropriate balance between the complainant's interest in autonomy and equality and the need to prevent over-extension of criminal sanctions," McLachlin writes.
 
The cases, known as Mabior and DC, are prosecutions of HIV-positive people who did not tell their sexual partners their HIV status before having sex. The complainants did not become HIV-positive in either case.  
 
With respect to Mabior, the decisions overturn the Manitoba Court of Appeal in part, entering convictions for aggravated sexual assault related to three complainants and an acquittal with respect to a fourth. The court upheld the acquittal of DC from the Quebec Court of Appeal.
 
The decision won't have any practical effect on the accused in Mabior, because he was deported to South Sudan in February.
 
However, for HIV-positive people living in Canada, the stakes remain high.
 
In 1998, the court ruled that failure to disclose your HIV status before having sex could constitute assault. It set the threshold as whether the act posed a “significant risk” to sexual partners.
 
Parliament has never weighed in, leaving provincial prosecutors to decide how frequently to lay charges in such cases. In Ontario, where the bulk of these charges have been filed, the Ministry of the Attorney General toyed with introducing rules that would limit prosecutions, but those rules never materialized.
 
Since 1998, charges have escalated. Now, HIV-positive people are often charged with aggravated sexual assault — which carries a maximum penalty of life in prison and can land those who are convicted on the sex offender registry.

The decision also clears the way for the Ontario Court of Appeal, which put off hearing appeals of two criminal cases pending today's decision from the Supreme Court. 

The new rules will apply to HIV-positive people whose cases have not yet gone to trial and to cases that are under appeal, like those before the Ontario Court of Appeal. HIV-positive people who are already serving time for HIV nondisclosure cannot have these new rules applied retroactively.
 
The cases set off a firestorm among people living with HIV and organizations that support them. A coalition of AIDS groups quickly released a statement calling the decision a “cold endorsement of AIDS-phobia.”
 
“In practice, today's ruling means that people risk being criminally prosecuted even in cases where they exercised responsibility and took precautions, such as using condoms – which are 100 percent effective when used properly,” reads the statement, which was endorsed by the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the Black Coalition for AIDS Prevention and other groups.
 
Jay Koornstra is the director of Bruce House, a charity that provides housing to people living with HIV in Ottawa. He says that the Supreme Court failed to consider “the realities of HIV today.”
 
“Everyone has a responsibility to protect themselves and others. I don't think that this advances that approach to health.”
 
He also worries that the decision will give HIV-negative people the impression that they can simply assume partners are HIV-negative until being told otherwise — a poor strategy for protecting their health.
 
Tim McCaskell, another long-time AIDS activist, says that the law is out of step, requiring disclosure in cases where HIV transmission is unlikely.
 
“Maybe we need two sets of safer sex guidelines. One to keep yourself and others healthy, and another to keep you out of jail,” he says.
 
Since HIV nondisclosure was criminalized, defence lawyers have looked for ways to limit the law's scope. The introduction of evidence of low viral load was one such way, especially in cases where condoms hadn't been used. But that's going to be more difficult now, says Micheal Vonn of the BC Civil Liberties Association.
 
“The advances that we were making at the lower courts have been cut off at the knees,” she says. “It's a huge setback. Massive.”
 
Meanwhile, AIDS service providers have been advising clients to use condoms in order to avoid the risk of prosecution — but with today's decision, that may no longer be enough.
 
“You can imagine the horror show that service providers are waking up to today,” she says. “There's so little concern [in the judgment] about what is going to happen to HIV-positive people, many of whom have been very responsible about condom use.”
 
McCaskell also laments that the court missed an opportunity to clarify the law for all types of sex, rather than just vaginal sex between a man and a woman.
 
“The first email I got was, 'Do I have to use a condom when I give a blowjob?' The answer is, 'We don't know.'”
 
Or, as Koornstra says, “The grey area is still grey.”
 
McCaskell will now turn his attention to winning prosecutorial guidelines, which would come from the provincial Ministry of the Attorney General.
 
Cécile Kazatchkine, of the Canadian HIV/AIDS Legal Network, goes a step further.
 
“We are calling on police and crown prosecutors not to prosecute people when a condom is used or when there is a low viral load, because we don't believe it's in the public interest,”  Kazatchkine says. “Just because the Supreme Court has given the courts the power to prosecute these cases, it doesn't mean that they should.”
 
Failing that, HIV-positive people and their allies could lobby the federal government to change the law, Vonn points out. But given the Conservative government, “it seems unlikely at the current juncture that there would be any taste for this,” she says.
 
While the cases will have wide-ranging implications for HIV-positive people and those who love them, McCaskell called the acquittal of DC a “glitter in the gloom.”
 
“In terms of that personal story, this is good. This woman has been dragged through hell and back, and now she's been acquitted. But she was acquitted on a technicality,” McCaskell says.
 
Kazatchkine agrees.
 
“Justice has been done in that particular case.”
 

Comments

Knowing HIV+s have a greater responsibility
@ MIKE: “all adults are responsible for their own safety when having sex...” I tried to be responsible for my own safety… BUT he took off the condom that I put on him —behind my back !! And he was HIV+ but he never told me. I wanted to hunt him down and kill him. Eventually I did calm down, but I still wonder how many others did he infect? How many others like him are out there? That out of date old “slogan” about protecting yourself is only half the equation for a successful society. ***WE ARE ALL RESPONSIBLE FOR OTHERS. That is the other half of the equation.*** If someone knows that he/she is HIV+ and could pass on a lifelong disease to someone, then that person has the greater responsibility. We get HIV from people who have HIV. The low viral load statistics don't matter if you are the one infected. Silence no longer equals DEATH. But it could equal a lifetime of suffering in various ways. Why inflict that on even one more person? Fear of HIV or any other disease is the best protection we have against disease. Fear produces inhibitions and self imposed restrictions which prevent possibly harmful behaviour. Unfortunately drugs/alcohol reduces those inhibitions... People who have no inhibitions nor deferred gratification and behave in a way that causes harm to others should be dealt with by the law. The Supreme Court decision was fair. Reasonable people believe that.
Question for Mike J.
For convenience, Mike J., may I refer to you as an apologist for barebacking?
AIDS Action Now is correct
I cannot believe what has happened to people's reason regarding the wrongness and folly of criminalizing HIV transmission. Not only is what the AAN correct about how it will harm women, how it is nearly impossible to prove condom use during what is usually a private and intimate moment but it will also result in increases in HIV infections and even untreated HIV cases where treatment would have been easy to get in the past. All adults are responsible for their safety and should be held responsible to assume their partners are HIV positive until they know otherwise. To place the onus solely on the HIV positive person is pure folly, viscious and counterproductive. This Supreme Court has lost all my respect. It did not do its homework on this case. It acted like a bunch of sex negative prudish old foggies. I suppose that is because that is what they are. Sadly not even Trudeau with his brilliant Constitution and Charter of Rights was able to protect Canada from prudish sex repressed fuddy duddy old fogies when they get power. Hester Primm's A just turned to a +. Sad that Canada has gone so downhill from elightened beacon to repressed pariah.
@kendoll
I don't think the comments in the article about HIV activists planning to lobby the Attorney General of Ontario were satirical. There are many laws in Ontario that are (a) not enforced, (b) only enforced in really egregious circumstances, or (c) only enforced if you give the police enough evidence for an iron-tight case. For some time, QuAIA’s Tim McCaskell has publicly stated that he has been working on HIV prosecution guidelines for crown prosecutors in the Ministry of the Attorney General. Since McCaskell’s goal is to eliminate or minimize the number of prosecutions of HIV-positive people who have bareback sex with their partners without telling them about their HIV status, I assume the guidelines will call for very high hurdles for any prosecution. Of course, regardless of the court decision, HIV-positive people will be able to continue to bareback in dark rooms of bathhouses with impunity. I know someone who witnessed, a few years ago, a sad scene at the front desk of one Toronto bathhouse with a dark room. A young man came to the front desk and said that he had just been raped bareback in the dark room. Allegedly, a stronger man had grabbed the young man in the dark room, pushed his bare penis into the young man's rectum and fucked him until he ejaculated inside the young man. The stronger man then walked out of the dark room. The young man was stunned after being raped, so he didn't follow the stronger man out of the dark room to see who he was. When he later went to the front desk to report the sexual assault, the front desk clerk told him that there was nothing he could do and there was no point in calling the police since he wouldn't be able to identify the man who sexually assaulted him. Besides, the clerk said, when you go into a dark room, you shouldn't be surprised if things like that happen. The young man then got his things and left the bathhouse. He was crying.
Brent....
I think the article was satirical. Otherwise it would be like the Gays asking the Nazi's for a different shade of pink for their triangles and to ask the Nazi's not be too hard when then get their tattooed numbers. Of course it's satirical.
Positoids infecting negative gay men
This is all well and good, but I will continue to view soi-disant opponents of “HIV criminalization” with suspicion until they honestly deal with the crux of the issue for gay men – known positoids knowingly fucking guys of unknown or known-negative status without condoms. My suspicion is their instant response is “It takes two to tango,” since that’s their stock response to everything, it seems.
@kendoll
I think QuAIA's Tim McCaskell and other AIDS activists have already revealed their next step in the article above: put political pressure on the Attorney General of Ontario to ignore the Supreme Court decision and simply not prosecute cases where an HIV positive person has been accused of having bareback sex without disclosing their HIV status to their partners.
So...
what is the next step? What can we do to put this ruling to bed? Thank you.
It's a little late AAN
to use the inequality (discriminatory persecution) argument considering it's been missing in ANY significant manner from you and your friends including the so called HIV legal advocates,in this whole mess. Way TOO late. But hey, let the revisionist narrative begin.
Beware of propapanda - think for yourself
Rather than read propaganda from AIDS Action Now! and other AIDS activist groups dominated by QuAIA’s Tim McCaskell, Xtra readers should think for themselves and read the actual text of the unanimous Supreme Court of Canada decisions in (a) the Mabior case at http://scc.lexum.org/en/2012/2012scc47/2012scc47.html and (b) the D.C. case at http://scc.lexum.org/en/2012/2012scc48/2012scc48.html.

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