Man with HIV still guilty of aggravated sex assault despite condom use

TORONTO — An HIV-positive man who had protected intercourse with three women without telling them about his health status has had his aggravated sexual assault conviction upheld.

In dismissing his appeal, Ontario’s top court rejected arguments that condom use is a sure fire way to prevent transmission of the virus that can lead to AIDS.

“There is no dispute that a perfectly functioning latex condom provides a perfect barrier to HIV transmission,” the Appeal Court said. “(But) condoms do not always work as they are intended to work.”

For one thing, the court said, if a person is unaware of the risk, he or she may also not be as vigilant when using a condom.

Trial evidence was that the man, identified only as N.G., had been warned in October 2013 to tell prospective partners he was HIV-positive. He failed to do so, despite having repeated sex with the three women over several months.

They complained they would not have had intercourse with him had they known. One contracted HIV after sex with N.G., but it’s not known whether he infected her. Another said she felt suicidal while awaiting test results.

At trial, N.G. argued condom use made HIV transmission impossible. However, Superior Court Justice Edward Gareau rejected the argument in November 2017. While condoms can prevent HIV transmission, Gareau found they are only 80 to 85 per cent effective in real world circumstances.

Citing a 2012 Supreme Court of Canada ruling known as Mabior, the judge found a “realistic possibility” of HIV transmission existed when N.G., who was highly contagious, was having sex with the women. The 2012 ruling also made it clear that the failure to tell a partner about one’s status amounted to legal “fraud” that negated consent to sex.

Gareau convicted the accused but before sentencing him to 42 months, N.G. tried to reopen the trial by arguing the Supreme Court jurisprudence should be modified. He called in one expert on whom the top court had previous relied, Dr. John Smith from Winnipeg. Smith testified his thinking on condom use had evolved in recent years.

“An individual who always uses a condom and is careful in its use can be almost 100 per cent sure that the HIV virus will not be transmitted,” Smith said.

Interveners such as the HIV Legal Network also argued proper condom use alone should be enough to remove a “realistic possibility” of transmission for criminal law purposes.

Both Gareau and the Appeal Court rejected the assertion given the potential for condom failure.

“The Mabior decision reflects the Supreme Court’s appreciation for the fact that perfectly operating latex condoms provide a perfect barrier to the transmission of HIV,” the Appeal Court said. “It also reflects the court’s understanding that sex happens in the real world and that, in that world, human error and condom failure are concerns across the population.”

In this case, the appellate court said, N.G. had intercourse with the women at a time his viral load — a strong indicator of infectiousness — was not low. Wearing a condom did not definitively rule out a realistic possibility of HIV transmission, it said.

The interveners also argued that criminalizing people with HIV who use condoms is bad public policy and only adds to their stigmatization. While the issue might one day be reconsidered, the Appeal Court found no reason to do so in the current case.

This report by The Canadian Press was first published on Aug. 6, 2020.

Colin Perkel, The Canadian Press