by B.J. Caldwell, Educator and Tom Hammond, Executive Director

The Candian HIV/AIDS Legal Network has released a press release welcoming the recent announcement that the Crown Prosecution in Hamilton has decided not to charge Justus Zela with aggravated sexual assault. Zela was charged in February 2009 after an ex-partner alleged they had oral sex without disclosing that he had HIV. The ex-partner has not tested HIV positive.

According to the claim, oral sex had taken place a few times --- and mostly with Mr. Zela performing the act. Oral sex is a low risk activity for HIV transmission --- and that risk is for the performer of the act, not the receiver. There has never been a documented case of a person living with HIV transmitting their infection by performing oral sex on someone. The low risk for HIV acquisition is for the performer. To be clear, HIV infections have transmitted via oral sex, but compared to unprotected vaginal or anal sex, or sharing needles, the risk in the case of oral sex is quite low.

The Supreme Court decided in 1998 (R.v.Currier) that a person living with HIV must disclose their status to sexual and drug using partners IF they put their partners at "significant risk of serious bodily harm". Unfortunately, they declined to define their terms clearly. While 'serious bodily harm' obviously refers to HIV infection, 'significant risk' was never defined. We know that it most likely refers to high risk activities only (unprotected anal/vaginal sex, sharing needles) and not low risk activities (oral sex), but since they weren't clear in their ruling, it is up to Crown Prosecutors to decide whether to charge someone (and this leaves it open for abuse). And, HIV doesn't actually have to transmit to another person for the criminal code to be usedtwork --- attempted aggravated sexual assault carries significant jail time.

The press release also argues the need for guidelines for Crown Prosecutors in these situations so that the law is applied equally.

From the press release:

"We’re pleased with the Crown’s announcement this morning, but it must go further.  This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network.  “There was never any solid basis for significant risk of transmission.  It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

...

“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott.  “Guidelines should be informed by the evidence about actual risks of transmission.  They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”

...

Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing their status to a sexual partner.  Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by the responsible practise of safer sex.  In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.