When to criminalize HIV transmission? Canada gives its response in R. v. Mabior (2012)

Posted by Kate Barth on June 27, 2014

R. v. Mabior, 2012 SCC 47, a landmark decision related to whether non-disclosure of one’s HIV positive status to a sexual partner constitutes fraud negating consent (and thus subjects the HIV positive partner to criminal sanctions), was handed down by the Canadian Supreme court in 2012 and has inspired much praise, criticism and commentary in the years since. Given its importance, the case was chosen by the Global Health and Human Rights Database to be the thousandth judgment published on the Database.

The facts of the case were simple, though the legal analysis anything but.  Mr. Mabior was charged with nine counts of aggravated sexual assault for not disclosing his HIV-positive status before engaging in sexual intercourse with the nine complainants. None of the complainants tested positive for HIV.

In determining whether Mr. Mabior’s non-disclosure constituted fraud which would vitiate the consent of his partners, the Court explained that fraud consisted of two components: (1) a dishonest act, including either falsehoods or failure to disclose one’s HIV status; and (2) deprivation, “denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm.” The Court thus held that failure to disclose one’s HIV-positive status “may amount to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm.”

This finding, of course, begged the question of where sexual contact does pose a “significant risk of serious bodily harm”. In this regard, the Court stated that the requirement of “significant risk of serious bodily harm” requires disclosure of HIV status only “if there is a realistic possibility of transmission of HIV.”  The Court further held that a realistic possibility of transmission of HIV is negated if “(i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.” According to the Court, this standard respects “the interest of a person to choose whether to consent to sex with a particular person or not,” in line with the values of autonomy and liberty in the Canadian Charter of Rights and Freedoms.

The Court rejected the Crown’s submission that all HIV-positive people should be required to disclose their HIV status to all sexual partners in all cases. It observed that under this approach, individuals “who act responsibly and whose conduct causes no harm and indeed may pose no risk of harm, could find themselves criminalized and imprisoned for lengthy periods.” The Court added that the “absolute disclosure approach” was “arguably unfair and stigmatizing to people with HIV, an already vulnerable group.” It noted that people living with HIV who act responsibly and pose no risk of harm to others “should not be put to the choice of disclosing their disease or facing criminalization.”

Although the decision has been praised by some, others have critiqued the judgment for confining its analysis to HIV transmission and vaginal intercourse, for its confusing articulation of what constitutes a “realistic possibility” of infection[1], for giving “false confidence” to HIV positive persons who take the protective steps outlined by the court but  routinely conceal their HIV positive status from their partners and for potentially enhancing the stigma of HIV-positive persons by tacitly encouraging non-disclosure.[2] On the other side of the coin, the judgment was derided for possibly subjecting to criminal prosecution (and even life imprisonment) responsible actors who fail to disclose their status but otherwise minimize risk, albeit not to the Court’s standard. For these commentators, the Court’s approach “represents a missed opportunity to confirm a human rights and public health based approach for HIV/AIDS in Canada by failing to have considered” that reducing the incidence of STD’s is better dealt with via public health programs than criminal law and that HIV negative persons also bear responsibility for their sexual health.[3]

Whatever one’s point of view as to the soundness of the Court’s reasoning and decision, it is clear that this case has offered a forceful precedent for courts worldwide considering similar issues.

For more information and analysis on R. v. Mabior, visit the Global Health and Human Rights Database here.

[1] Kirk Martin, Where the Supreme Court Went Wrong on HIV Disclosure, The Globe and Mail (October 12, 2012) available at http://www.theglobeandmail.com/news/national/where-the-supreme-court-went-wrong-on-hiv-disclosure/article4610682/

[2] Lucinda Vandervort, HIV, Fraud, Non-Disclosure, Consent and a Stark Choice: Mabior or Sexual Autonomy?, Criminal Law Quarterly, Volume 60, Issue 2, pp. 301-320 (October 2013).

[3] Susan Precious, Criminalization of HIV non disclosure continues in Canada with SCC’s Mabior Decision, available at http://www.branchmacmaster.com/health-blog/2012/10/5/criminalization-of-hiv-non-disclosure-continues-in-canada-wi.html

Kate Barth is a Legal Officer at Lawyers Collective.