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Aggravated Sexual Assault
In Canada, an HIV-positive person who has sexual intercourse with another person, without using a condom, and without telling that person about the infection, commits the criminal offence of aggravated sexual assault.
- An assault is the intentional application of force to another person without that person's consent (Criminal Code s.265).
- A sexual assault is an assault that happens in a sexual context - "in circumstances of a sexual nature such as to violate the sexual integrity of the complainant" (s.271).
- The law is that even if there is consent, it is invalidated if it is only given because of fraud (s.265(3)(c)).
- In general, the fraud must go the essential nature of the sexual contact consented to.
- If the fraud is about an HIV infection (either an actual lie, or just deliberate non-disclosure), that is enough.
- This is because having sex with an HIV-infected person creates a "significant risk of serious bodily harm".
- An assault, sexual or otherwise, becomes an "aggravated" one if it wounds, maims, disfigures or endangers the life of the victim (s.268).
- For now anyway, in Canadian law, HIV infection is still seen as sufficiently life-threatening to meet the third part of that test.
Issues are currently arising in Canada around all this.
In particular, there is an issue currently being litigated, about whether condom use sufficiently reduces the risk of infection that it also protects an infected person against prosecution.
Another issue that is likely to become more significant arises because of the dramatic improvements in the prognosis for infected people. As HIV infection is seen more and more as a serious but manageable condition, perhaps analogous to diabetes, and not life-threatening as long as the patient is responsible, so there will be more and more doubt about the "aggravated" component of an aggravated sexual assault".
It should be underlined that a person who does not know he or she is infected, and is not "wilfully blind" to that possibility, is not guilty of any crime simply by unknowingly exposing a sexual partner to infection, even if that partner is actually infected. "Wilful blindness" is a condition where a person has reason to think he or she might well be infected, but chooses not to check, for fear of finding out.
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FIRST LINE CRIMINAL LAW INFORMATION