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HIV-positive gay man acquitted

HIV-positive gay man acquitted

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Insufficient risk of serious bodily harm, judge rules
 An HIV-positive gay man who failed to disclose his status before having unprotected sex with his boyfriend was found not guilty of aggravated sexual assault on May 7.

"I want to go back home," the accused said immediately after judgment. "I'm going to go home and find my life."

Neither the accused nor the complainant can be named due to a publication ban.

The complainant, who was not in court for today's verdict, remains HIV-negative.

In her judgment, Justice Lauri Ann Fenlon found the accused had unprotected sex with the complainant on three occasions.

She also found the accused deliberately lied about his HIV-positive status, and that his boyfriend would have not have agreed to have sex without a condom had he known the truth.

But Fenlon ruled the risk of transmission in this case — placed by expert testimony at 4 in 10,000 per sexual act for a total risk of 12 in 10,000 acts or 0.12 percent — did not constitute a sufficiently significant risk of bodily harm to convict.

"It's serious harm but less serious than it was when R v Cuerrier was reached," Fenlon ruled.

In 1998, the Supreme Court of Canada ruled in Cuerrier that knowingly exposing a sexual partner to HIV constitutes a prosecutable crime (aggravated sexual assault).

But things have changed since that decision was reached, Fenlon ruled.

"It's no longer the case that people infected with HIV will develop AIDS and die prematurely," she said.

"HIV, while still a deadly virus, can generally be treated and held in check."

That fact, coupled with the actual risk of transmission in this case (where the accused was exclusively a bottom), led Fenlon to conclude that the accused's failure to disclose his status did not expose the complainant to a risk of harm significant enough to warrant conviction.

"I have concluded that the Crown has failed to prove that the risk of HIV transmission here meets the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault," Fenlon ruled.

"The accused is therefore acquitted of the offence charged."

Fenlon said her judgment should not be taken as an endorsement of the accused's behaviour.

"He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk," she said.

"But not every immoral or reprehensible act engages the heavy hand of the law."

Defence counsel Jason Gratl welcomed the judge's decision.

"From a legal point of view, this case means that unprotected sex will not necessarily lead to a conviction even if the accused failed to disclose," Gratl said outside the courtroom.

"From a practical point of view, however, both disclosure and protected sex is the wise option to avoid prosecution altogether," he added.

Today's ruling suggests that "HIV is best understood as a chronic, manageable condition, rather than a fatal illness," Gratl said.

"But not all HIV-positive people should take comfort in this. The presence or absence of significant harm still has to be determined on a case-by-case basis," he cautioned.

Fenlon's decision is a sign that individual cases of risk, not HIV-positive status, will determine future convictions, Gratl said.

"This case builds on a growing body of case law that recognizes that there may be different transmission rates under different circumstances," he noted.

"It's almost impossible to know in advance the statistical risk of transmission attached to specific sexual activities subject to specific viral loads," he warned.

The best way for people to avoid being charged, Gratl emphasized, is to overestimate the risk of potential infection, disclose their status and use condoms.

In reaching her decision, Fenlon dismissed key parts of the accused's testimony as unreliable, pointing to his recollections of the one instance when he admitted he may have engaged in unprotected sex with the complainant on New Year's 2004.

"He filled in details to bolster his evidence," she said. "He said he didn't see the complainant's genitals when they had sex on New Year's Day and the accused also said he could not feel if a condom was being used but admitted that he guided the complainant's penis into him with his hand."

She went on to criticize the accused's previous assertion that the complainant would walk into the bathroom to dispose of the condom 99 percent of the time when they had sex.

"This is inconsistent with the testimony of the complainant ejaculating on the bed to complete the sexual encounter," she said.

She contrasted the accused's testimony with that of the former roommate who she described as a truthful witness, and the complainant, who she felt was generally truthful and straightforward.

"In my view, this court case does not change the balance of responsibility between HIV-positive and HIV-negative persons," Gratl told Xtra.

"Prudent HIV-negative persons who are sexually active must continue to protect themselves by insisting that condoms be worn," he said.

"From a medical point of view, HIV-positive individuals, whether top or bottom, should continue to protect their partners by insisting that condoms be worn," he added.

"What this case really stands for is the proposition that unprotected sex in relation to which the HIV-positive partner has not disclosed their HIV status, is not necessarily in all cases criminal," Gratl said.

"In many cases it will continue to be criminal," he added. "In all cases it will continue to be unwise."

When asked if the Crown plans to appeal, Crown Counsel Brendan McCabe said he had no comment.

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Comments

Yes Jason
And I repeat.
If my boyfriend or partner did not disclose his HIV, or kept the truth from me, I would murder him and take on the full responsibility for my actions.

Angry? No.
Would I be in this situation? YA GOT THAT RIGHT.
Fuck!


I don't care that they boyfriend stayed with him. I'm commenting on the HIV liar and what I would do to my partner if he did that to me.

There is a thing out there called trust. Some couples have it, some don't.
I'm not saying I wouldn't use a condom with my partner, but I would most certainly hope that if we were together long enough, and trust wasn't an issue, that we wouldn't be using them forever.
Good Ruling
It's the resonsiblity of both parties to protect themselves (and others). The ruling seems to be fair.
It also seems the person above my comment is quite angry. Did you get all the information before you wrote that statement? Xtra West did full coverage of the trial in great detail.
Here's a small recap of some info you may have missed:
Even though the status was disclosed later on in the relationship (after they had slept together), you do realize the boyfriend chose to stay in a relationship with the HIV positive man, and had (safe) sex with him afterwards even after his status was confirmed. Granted there was disception on the part of the HIV positive man on when he found out his status.
SAY WHAT?
If this guy was indeed a boyfriend or partner, he should have MOST DEFINITLEY discolsed his HIV status.

Hell, even if he was a one-night fuck should have been forward and honest.

This DISGUSTS ME!!!!!!!!!!!!!!

Prison and throw away the key on this guy, I can't believe I just read that this guy got off and can go home and "find his life" ?

THIS IS OUTRAGEOUS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

...If this had have been my boyfriend, I would have stabbed his fucking heart out and gone willingly to prison for murdering him.

Absolutely disgusting!
responsible decision
This is a good decision. It bolsters the idea that two partners have mutual responsibility to protect their own safety. It recognizes the newest research about HIV being treatable and hard to transmit. YET, it also leaves the door open for prosecution of those who would wantonly try to infect others.
We already have public health powers to intervene for those kind of people anyway so I don't see the need for tax dollars to be spent on these cases.

What I like is that this judgement does not let anyone off the hook, postive or negative or unknown. (if you have had sex since 3 months before your last test, you are not really negative; your status is unknown: probably isn't certainty) I still, like I had to in the 1980s, cover my own ass; or should I say, my own penis each and every time. I don't get to rely on a partner to do it for me. I have to be my own man.

Any other decision would have contributed to the spread of HIV. In fact, if this man was found guilty, I may not have tested again until I had symptoms or until the laws changed or there was an effective vaccine. I have never done it bare so I would take my chances instead of risking the social stigma and potential 14 years in jail because of some false or paranoid allegation by a person, who thinks they are (probably, maybe0 negative but doesn't take responsibility for themselves.

Had this man been convicted, the next prosecution would be for oral sex and/or protected sex. I beleive the legal hammer in this conservative climate was moving that draconian way.

In fact, had this verdict been guilty I would have got a group of low risk, unlikely to be positive people together to protest the criminalization of HIV by refusing to test until the way this law was being used as a hammer was removed.

With this ruling we can all go back to common sense and personal responsibility and consider taking the HIV test with less worry of social stigma and legal sanction. Good decision judge!
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