When it comes to sexual offences, consent is a key factor. It is important to note that it is not possible to obtain consent when there is fraud involved.
This article reviews the recent decision of the Court of Appeal for Ontario in R. v Murphy, in which the defendant had an aggravated sexual assault conviction set aside in light of new evidence which showed that the risk of her transmitting HIV was effectively zero.
In 2011, the accused had vaginal intercourse with the complainant without a condom, and she did not disclose her HIV-positive status to him prior to the encounter. When the complainant came across a media report about an HIV-positive woman having unprotected sex in the area, the complainant reported her to the police. The accused had been on antiretroviral treatment since 2001. Testing showed that the accused’s viral load was undetectable on various dates both before and after the sexual contact with the complainant. The accused was charged with aggravated sexual assault. The complainant did not contract HIV, but did say that he would not have had sexual intercourse with her if she had told him that she was HIV-positive.
Fraud negates consent; consent may not be able to given if HIV-positive status not disclosed
Under section 265 of the Criminal Code, in the context of an assault, no consent is obtained where the complainant submits or does not resist by reason of fraud.
In 2012, the Supreme Court of Canada looked at the role of HIV-positive status in consent in the case of R. v Mabior. The Chief Justice said:
“I conclude that a person may be found guilty of aggravated sexual assault … if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted. If the HIV-positive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met, on the evidence before us.”
The Supreme Court held that the accused could be convicted for unprotected sexual intercourse, even though his viral load was undetectable, because there was a significant risk of serious bodily harm.
Trial judge found realistic possibility of HIV transmission
In R v. Murphy, Justice Mulligan stated that the key issue was whether or not the accused had a duty to disclose her HIV status to the complainant before sexual activity without a condom.
Expert evidence outlined that the chance of a female HIV-positive partner on medication with a low or undetectable viral load transmitting HIV was extremely low, with an estimated chance of 1 in 10,000 to 20,000 per sex act.
Nonetheless, his Honour found that even an undetectable viral load raises the realistic possibility of transmission. As a result, the Court found that the accused’s failure to disclose her HIV status constituted a fraud that negated consent and the accused was convicted of aggravated sexual assault.
Accused appealed after science about HIV transmission evolved; acquittal was entered
In 2021, the accused applied for, and obtained, an extension of time to appeal her conviction based on developments in the science in relation to HIV transmission.
The accused asked the Court of Appeal to admit fresh expert evidence showing that the risk of HIV transmission is effectively zero when a person is on antiretroviral treatment and their viral load is undetectable. An infectious diseases specialist from McMaster University testified that, based on current scientific and medical knowledge, there was “zero risk” that the accused would transmit HIV through a single act of condomless vaginal intercourse, while being treated and having an undetectable viral load.
Interestingly, the Crown agreed and joined in the accused’s request that the court set aside the conviction. The Court of Appeal found that the evidence was admissible as it did not exist at trial, and entered an acquittal, agreeing that there was no realistic possibility of transmission.
Court of Appeal refused to make similar finding in all cases of suppressed viral load
The accused also asked the Court to go beyond the circumstances of her case and hold that there was no realistic possibility of transmission in all cases where a person has a suppressed viral load and is on antiretroviral treatment. This request would increase certainty by identifying a new set of circumstances in which consent would not be negated.
The Court of Appeal agreed with the Crown that it would not be appropriate to make a broader holding about circumstances which would negate a realistic possibility of HIV transmission. The Court refused to make a more general statement as a trial court was better suited to developing a record to consider the application of the standard to other circumstances.
In addition, the Court held that the expert evidence from the specialist in this case was based on a single occasion of vaginal intercourse and where the person’s undetectable viral load was stable for at least six months. Therefore, the determination sought by the accused was not necessarily supported by the evidence. However, the court concluded that it would be open to a trial court to find other circumstances in which there is no realistic possibility of transmission.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Skilled Representation Against Sexual Offence Charges
Barrison Law understands the serious legal consequences and social stigma associated with sexual offences. Our team of criminal defence lawyers is experienced in defending clients against charges of sexual offences involving children, child pornography and sexual assault, including historical sexual assault. We help clients at all stages of the criminal justice process, from bail hearings to trial.
Our office is conveniently located just steps from the Durham Consolidated Courthouse. We accept cases on private retainer and Legal Aid and offer 24-hour phone service. To schedule a confidential consultation on your criminal law matter, call us at 905-404-1947 or reach out online.