When Failure To Disclose Is A Crime…

scalesofjustice

The issue of HIV-status disclosure has been a hot topic recently in Canada. Yesterday, 31-year old Steven Boone of Ottawa was charged with three counts attempted murder and aggravated sexual assault after not disclosing his status to his sexual partners before having unprotected sex. Two charges were ultimately dismissed, while more have since been filed in Ottawa and Waterloo.

The case first became news in 2010 when Boone’s picture was released to the media after a then-17-year-old came forward and he tested positive after having had unprotected sex with Boone several times. Several other victims came forward, and more charges were filed. During the trial, the Crown brought forth transcripts of online chats where Boone lied about his status and sought out HIV-negative men to have sex with, leading to the higher charge of attempted murder.

AIDS activists worry that the criminalization of non-disclosure will cause people who might be infected to remain in the dark about their status. “This just sends a terrible message. Why would you want to know if you could be criminalized, if you could end up in prison for the rest of your life?” asked Dr. Mark Tyndall, who testified as an expert during Boone’s trial.

Boone’s conviction comes only a month after the Supreme Court ruled that people are not required to disclose their HIV status if the “realistic possibility of transmission is negated”, which in this case refers to a low viral load and proper condom use.

This is an update to the landmark 1998 decision that established that failure to disclose one’s status combined with failure to use protection constitutes “significant risk of harm”, and could result in a charge of aggravated sexual assault. The maximum penalty for aggravated sexual assault in Canada is life in jail, although no one has received the maximum sentence so far.

The Canadian Aids Society spoke out about last month’s ruling, calling it unjust and “a major step backwards for public health and human rights”.

They point out that the arbitrary notion of “significant risk” blatantly ignores scientific evidence that is even more apparent now than the original ruling in 1998. They are worried that people who exercise responsibility and take the proper precautions could still be prosecuted under the new law.

“People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads. Similarly, people not living with HIV need to be empowered to accept responsibility for their own health, and not proceed under a false sense of security that the criminal law will protect them from infection,” they wrote in a media release.

Intentional transmission of HIV can also lead to criminal prosecution in the United States as well as most European nations. By contrast, in the areas of the developing world where rates of HIV and AIDS are more widespread, there are no laws regarding knowingly infecting someone with the virus.

 

Photo credit: File photo, Abbotsford Times

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