Canadian Judge Rules Risk of HIV Transmission Not Enough for Criminal Charges

While headlines across the U.S. and Canada have been blasting about HIV-positive people being charged for failing to disclose their HIV-status, one Canadian judge has dismissed criminal charges against a defendant in such a case in Vancouver.

Judge Lauri Ann Fenlon ruled the evidence showed that the risk of transmission in the case of an unidentified man accused of unprotected sex with another man was not significant enough to rise to criminal misconduct.

The case unfolded in a court room in Vancouver in April. According to a report from Xtra, the Canadian LGBT newspaper, the defense argued that while the accused had not been completely honest about his HIV-positive status (he said he was uncertain of it) he made an agreement with the alleged victim, his boyfriend at the time, that they would engage in protected sex.

But what really made the case interesting was the expert testimony of Dr. Richard Matthias. Mattias testified that the risk of transmission from a positive bottom to a negative top was about 4 in 10,000 exposures.

The accused testified that the couple had had unprotected sex once — during a New Year's Eve drug fueled incident in which he testified he was "obliterated" — while the alleged victim testified they had unprotected sex seven times.

In her ruling, Fenlon said there was evidence the two had engaged in unprotected sex on three occasions, meaning the risk was .12 percent.

"This verdict should not be understood to mean that the court condones the behaviour of the accused," blogger Edwin Bernard quotes Fenlon saying in her ruling. "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. But not every unethical act invokes the heavy hand of the criminal law."

Photo credit: motoyen