In R v Mabior, the Supreme Court affirmed that if a person living with HIV does not disclose his or her HIV status to a sexual partner, he or she could face a criminal charge of aggravated sexual assault, regardless of whether transmission of HIV occurred. Part I of this blog series summarized the actual ruling. In this post, I explore the impact of the decision on people living with HIV (PLHs).
1. POTENTIAL DETERRENCE TO TESTING AND TREATMENT
One of the main defences a person living with HIV could pose to the court is the ignorance of one’s HIV status. If a person did not know he or she had HIV at the time of intercourse, he or she lacks the requisite “guilty mind” or mens rea required to face a criminal charge. In R v Williams, a case decided before Mabior, the Supreme Court lowered the accused’s charge from aggravated assault to attempted aggravated assault because there was a possibility that the accused transmitted HIV to his before knowing his HIV status.
Many advocates of decriminalizing HIV non-disclosure have argued that a criminal sanction attached to a person’s HIV status would deter people from getting tested and seeking treatment. The Supreme Court rejected this argument from the interveners in Mabior for lack of evidence.
However, a study released three months after the Mabior hearing affirms the interveners’ argument. A non-randomized survey of gay men in Ottawa found that criminalization would influence the number of people seeking HIV testing and treatment. In the study,
- 17% of the survey respondents noted that nondisclosure criminal prosecutions affected their willingness to get tested
- 13.8% of the respondents said the criminal law made them afraid to speak with nurses and physicians about their sexual practices.
While the percentage of people admitting to a potential behavioural change is relatively small, it nonetheless proves that criminal law has a realistic possibility of changing people’s behaviour. Therefore, the overbroad criminal law against PLHs poses a serious barrier to preventing new HIV infections by discouraging people from seeking HIV testing or treatment.
R v Mabior, 2012 SCC 47.
R v Williams,  2 SCR 134.
Patrick O’Byrne et al, “Nondisclosure Prosecutions and HIV Prevention: Results From an Ottawa-Based Gay Men’s Sex Survey” online: (2012) [forthcoming in May 2013] Journal of the Association of Nurses in AIDS Care