This week, The Canadian Supreme Court heard an appeal involving people living with the human immunodeficiency virus (HIV) who recently were acquitted by provincial appeal courts of aggravated assault and sexual assault charges for not disclosing their HIV status. The convictions hinged on their failure to inform their sexual partners that they have HIV.
In the first case, a man was convicted in 2008 of aggravated assault for having sex with six women without disclosing his status, but two years later he was acquitted on appeal. The Manitoba Court of Appeal ruled if an HIV-positive person wears a condom or has a low viral load and, therefore, a low risk of transmitting the virus, having sex does not pose a risk of serious bodily harm. In the second case, a Quebec woman did not disclose her HIV-positive status to her former spouse. In neither case did the “victim” contract AIDS.
In 1997, Florida legislators made it a felony for an HIV-infected person to have “sexual intercourse” without informing the partner of their infected status, adding the virus to a list of established STDs, like gonorrhea, chlamydia and syphilis.
But Florida statutes specifically define sexual intercourse only as vaginal sex between a man and a woman, meaning “the penetration of the female sex organ by the male sex organ.” Therefore, gays and lesbians cannot be charged. The question before the courts and legislatures needs to be decided on legal and not moral grounds.
This article appears in Feb 16-22, 2012.