Friday, May 07, 2010

HIV- Positive Gay Man Acquitted For Having Sex With Unprotected Partner

"A judge has found an HIV-positive man not guilty of aggravated sexual assault for having unprotected sex with a gay partner in Vancouver," reports Keith Fraser. "B.C. Supreme Court Madam Justice Lauri Ann Fenlon also found the accused, who cannot be identified under an unusual publication ban, was not guilty of the lesser and included offence of sexual assault. The accused claimed he had had unprotected sex without his boyfriend knowing about his HIV status only once. The complainant, whose identity was also shielded by the court, testified that he was deceived five times. The judge determined there were in fact three instances — making the risk of viral transmission 12 in 10,000 — but that it was not sufficient to represent a significant risk of harm. She noted that it may have been immoral for the accused to have had sex while deceiving his partner, but that the circumstances did not give rise to a criminal offence."


HIV-positive gay man acquitted reports:
B.C. Supreme Court Madam Justice Lauri Ann Fenlon based her finding of statistical probability on Dr Richard Matthias' (pictured above) expert testimony that the risk of transmission in this case was just 4 in 10,000 per unprotected act of anal intercourse. The accused here is a bottom.

"From a legal point of view, this case means that unprotected sex will not necessarily lead to a conviction even if the accused failed to disclose," the accused's lawyer, Jason Gratl, said outside of court.

"From a practical point of view, however, both disclosure and protected sex is the wise option to avoid prosecution altogether," Gratl added.

Translation: this verdict does not decriminalize HIV in Canada. But it's a step in the right direction.

It's an acknowledgment that merely being HIV-positive and failing to disclose does not automatically make someone a criminal.

It's having undisclosed, unprotected sex where there's a significant risk of transmission that's a crime — at least for now. READ MORE