Rethinking Risk: The Relevance of
Condoms and Viral Load in HIV
Nondisclosure Prosecutions
Isabel Grant*
An HIV-positive individual who fails to disclose
his or her status to a sexual partner may face charges
ranging from nuisance to murder for such behaviour,
with the most common charges being aggravated
assault and aggravated sexual assault. The number of
prosecutions in Canada against individuals who fail to
disclose their HIV-positive status to their sexual
partners has risen over the last ten years. At the same
time, scientific advancements in treatment options and
our understanding of transmission, condom usage, and
viral load are constantly influencing the assessment of
the risk that nondisclosure poses to the complainant in
any given case.
The author reviews the recent case of R. v.
Mabior, the first judgment in Canada to criminalize
nondisclosure in the context of protected sex. She
argues that encouraging condom use is so important,
and that the use of condoms reduces the risk of
transmission so significantly, that the criminal law
should distinguish between protected and unprotected
sex in cases of nondisclosure. The author proceeds to
critique the trial judge’s reliance on viral load as a factor
in determining whether nondisclosure poses a
significant risk of serious bodily harm under the test
established in Cuerrier. The author argues that the
accused’s viral load, unlike condom use, is not a
manageable standard on which to base culpability.
Un individu sropositif qui omet de divulguer son
tat son partenaire sexuel sexpose des poursuites
criminelles allant de la nuisance au meurtre. Les
poursuites les plus communes sanctionnant un tel
comportement sont celles de voies de fait graves et
lagression sexuelle grave. Le nombre de poursuites
contre des individus ayant omis de divulguer leur
sropositivit leur partenaire est en hausse au Canada
depuis les dix dernires annes. En mme temps, les
avances scientifiques au niveau des options de
traitement, de mme que la meilleure comprhension de
la transmission, de lusage du condom et de la charge
virale dans le sang, influencent sans cesse et de manire
diverse lvaluation du risque que pose la non-
divulgation pour le plaignant.
Lauteure examine la dcision rcente R. c.
Mabior, qui constitue le premier jugement au Canada
criminaliser la non-divulgation dans le cadre dune
relation sexuelle protge. Elle affirme quencourager
lusage du condom,
rduit de manire
significative le risque de transmission, est si important
que le droit pnal devrait tablir une distinction entre
les cas de non-divulgation lors de relations sexuelles
protges et lors de relations sexuelles non protges.
Lauteure critique la prise en compte par le juge de
premire instance du la charge virale dans le sang en
tant que facteur permettant de dterminer si la non-
divulgation pose un risque significatif de blessures
graves au sens du test tabli dans laffaire Cuerrier.
Lauteure croit que le la charge virale de laccus,
contrairement lusage du condom, nest pas un critre
sur lequel il est possible en pratique de faire reposer la
culpabilit.
lequel
* Professor of Law, U.B.C. I would like to thank Anthony Purgas for his research assistance and
thoughtful comments and Rochelle Pauls for proofreading and editing this comment.
Isabel Grant 2009
To be cited as: (2009) 54 McGill L.J. 389
Mode de rfrence : (2009) 54 R.D. McGill 389
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 54
390
Introduction
391
392
393
393
395
396
400
403
I. The Facts in Mabior
II. The Position of the Parties
III. The Judgment
IV. Analysis
A. The Use of Condoms
B. Viral Load
Conclusion
2009]
I. GRANT CONDOMS AND VIRAL LOAD IN R. V. MABIOR
391
Introduction
Over the past ten years in Canada, we have seen an increase in prosecutions
against (mostly) men who fail to disclose their HIV-positive status to their sexual
partners.1 The Crown has relied on charges ranging in severity from nuisance2
through to murder.3 Most notably, in 1998, the Supreme Court of Canada held in R. v.
Cuerrier that the failure to disclose ones HIV-positive status, where this creates a
significant risk of serious bodily harm to the complainant, constitutes fraud and
thereby negates consent to sexual activity. When this is combined with the risk of
transmitting HIV, the crimes of aggravated assault and aggravated sexual assault are
made out.4 The Court complicated this finding in R. v. Williams, where it held that, in
order to establish aggravated assault or aggravated sexual assault, the Crown would
have to prove that the complainant was HIV-negative at the time the accused failed to
disclose his or her status. If this cannot be proven, then the proper verdict is attempted
aggravated (sexual) assault.5
Many articles have been written on the pros and cons of the criminalization of
nondisclosure,6 and this case comment does not revisit that debate. Rather, it assumes
that criminalization is here to stay, at least for the immediate future. The Supreme
Court of Canada has considered this issue and upheld criminalization on three
1 See Isabel Grant, The Boundaries of the Criminal Law: The Criminalization of the Non-
disclosure of HIV (2008) 31 Dal. L.J. 123.
2 R. v. Summer, [1989] 98 A.R 191, 8 W.C.B. (2d) 178 (Prov. Ct.), affd 69 Alta. L.R. (2d) 303, 73
C.R. (3d) 32 (C.A.).
3 A jury convicted Johnson Aziga of two counts of first-degree murder in April, 2009, making him
the first person in the world to be convicted of murder for spreading HIV. See Barbara Brown, Life
Term for Aziga: Murder Verdicts in HIV Transmission Case Make History The Hamilton Spectator
(6 April 2009), online: The Spec.com
4 [1998] 2 S.C.R. 371, 162 D.L.R. (4th) 513 [Cuerrier cited to S.C.R.].
5 2003 SCC 41, [2003] 2 S.C.R. 134, 231 Nfld. & P.E.I.R. 1 [Williams].
6 See e.g. Scott Burris et al. Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial
(2007) 39 Ariz. St. L.J. 467 [Burris et al., Criminal Laws and Behavior]; Samantha Ryan, Reckless
Transmission of HIV: Knowledge and Culpability [2006] Crim. L. Rev. 981; Richard Elliott,
Criminal Law, Public Health and HIV Transmission: A Policy Options Paper (2002) at 24, online:
UNAIDS
Dalton, Criminal Law in Scott Burris et al., eds., AIDS Law Today: A New Guide for the Public, 2d
ed. (New Haven: Yale University Press, 1993) 242; David P. Niemeier, The Criminal Transmission of
AIDS: A Critical Examination of Missouris HIV-Specific Statute (2001) 45 Saint Louis U.L.J. 667 at
671-73; Amy L. McGuire, AIDS as a Weapon: Criminal Prosecution of HIV Exposure (1999) 36
Hous. L. Rev. 1787 at 1791-94; Jaclyn Schmitt Hermes The Criminal Transmission of HIV: A
Proposal to Eliminate Iowas Statute (2002) 6 J. Gender Race & Just. 473 at 475-8; Jody B. Gabel
Liability for Knowing Transmission of HIV: The Evolution of a Duty to Disclose (1994) 21 Fla.
St. U.L. Rev. 981 at 983-7.
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occasions without a single dissenting voice.7 This comment focuses on how best to
limit and define the contours of criminalization, looking specifically at the relevance
of condom use and viral load.
R. v. Mabior8 is but one of many cases dealing with serious criminal charges
against an accused for failing to disclose his or her HIV status. While Mabior is only
a trial decision, there are two difficult and important aspects of the decision that merit
attention. First, Mabior is the only case in Canada to criminalize nondisclosure in the
context of protected sex.9 Second, Mabior is the only case to hold that, in the context
of protected sex, a very low or undetectable viral load can sufficiently reduce the risk
of serious bodily harm to preclude a finding of fraud negating consent. This comment
will focus on these two issues and highlight the complexity of nondisclosure
prosecutions. I argue that encouraging condom use is so important, and that the use of
condoms reduces the risk of transmission so significantly, that the criminal law
should distinguish between protected and unprotected sex in cases of nondisclosure.
In contrast, however, I argue that viral load is not yet a manageable standard on which
to base culpability.
I. The Facts in Mabior
The accused in Mabior was charged with ten counts of aggravated sexual assault
and one count each of forcible confinement, invitation to sexual touching, and sexual
interference. Only the aggravated sexual assault charges are the subject of this
comment.10 The evidence indicated that the accused sought out teenage runaways
from vulnerable backgrounds, one as young as twelve years old at the time of the
offence, by offering them drugs, alcohol and a place to stay. As of the date of trial,
none of the complainants had tested positive for HIV.11
7 R. v. Thornton, [1993] 2 S.C.R. 445, 13 O.R. (3d) 744; Cuerrier, supra note 4; Williams, supra
note 5. The Court considered this issue a fourth time when it denied leave to appeal after the
Newfoundland Court of Appeal had raised a sentence for criminal negligence from twenty-seven
months to over eleven years: R. v. Mercer (1993), 110 Nfld. & P.E.I.R. 41, 84 C.C.C. (3d) 41 (Nfld.
C.A.) leave to appeal to S.C.C. refused, [1994] 1 S.C.R. ix, 120 Nfld. & P.E.I.R. 90 n.
8 2008 MBQB 201, 230 Man. R. (2d) 184, 78 W.C.B. (2d) 380, motion to appeal filed (7 November
2008), Winnipeg AR08-30-07036 (Man. C.A.) [Mabior]. As of 18 August 2009, the appeal was
tentatively set to proceed on 1 December 2009: Telephone interview of Manitoba Court of Appeal
Registry Clerk (18 August 2009).
9 See Grant, supra note 1.
10 Mabior was convicted on six counts of aggravated sexual assault and one count each of invitation
to sexual touching and sexual interference (supra note 8 at paras. 164-67). He was sentenced to
seventeen years in prison, which was reduced to fourteen years on the basis of the principle of totality
and further reduced to nine years based on time served. The Crown asked for a sentence of twenty-
four years (Sentencing (10 October 2008), Winnipeg CR 07-01-27848 (Man. Q.B.), McKelvey J.).
11 Mabior, ibid. at para. 5.
393
I. GRANT CONDOMS AND VIRAL LOAD IN R. V. MABIOR
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Mabior learned that he was HIV-positive in January of 2004. After receiving this
information, he had extensive involvement with the public health system. Public
health officials provided him with information regarding HIV and told him to practise
safer sex and to disclose his HIV status to his sexual partners. Mabior was also
warned of the potential criminal liability that could attach to nondisclosure. He
received condoms from the health unit on a regular basis. However, he was diagnosed
with gonorrhea and was a named as a contact person for chlamydia, facts which were
used at trial to cast doubt on the assertion that he used condoms appropriately in
sexual activity.12
Between 1 January 2004 and 31 March 2006, the accused had sexual intercourse
with the nine complainants, sometimes with the use of a condom and sometimes
without. In no case did he disclose his HIV status prior to sexual intercourse. He was,
with one exception, compliant with his antiretroviral medication regime which
brought his viral load down to an undetectable level from October 2004 to December
2005. However, neither public health officials nor his doctor ever suggested to
Mabior that an undetectable viral load meant the virus was not transmissible.13
II. The Position of the Parties
The Crown took the position that nondisclosure should be criminalized regardless
of whether the accused used a condom because of the unreliability of condoms. It
argued that the fact that condoms had broken on three or four occasions with one
complainant demonstrated that the accused was not using condoms properly. Further,
the Crown pointed to the fact that there was no evidence that the virus could not be
transmitted when a persons viral load was undetectable. Even though that risk was
very low, the potential consequences of transmission were so lethal that even a
minimal risk was not one that a complainant should be expected to bear.14
The defence, in contrast, argued that protected sex should not be criminalized.
Further, it was argued that it was highly probable that the accused could not have
transmitted the virus when his viral count was low or undetectable. Defence counsel
12 Ibid. at para. 72.
13 The trial judge cited a 2008 statement authored by the Swiss Federal commission for HIV/AIDS,
which states that a person who has an undetectable viral load is not sexually infectious if that person
adheres to antiretroviral therapy, the viral load has been suppressed for at least six months and the
person has no other sexually transmitted diseases: Pietro Vernazza et al., Les personnes sropositives
ne souffrant daucune autre MST et suivant un traitement antirtroviral efficace ne transmettent pas le
VIH par voie sexuelle (2008) 89 Bulletin des mdecins suisses 165, online: SZ/BMS
judge also cited a
WHO/UNAIDS statement indicating that more research is needed to determine whether an
undetectable viral load eliminates the risk of transmission: WHO/UNAIDS, Statement, Antiretroviral
therapy
(1 February 2008), online: UNAIDS
transmission of HIV
trial
and
sexual
14 Mabior, supra note 8 at paras. 74-75.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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claimed that the accused knew that his viral load was low and that he knew there was
little or no risk of transmission. The accused relied on the fact that none of the
complainants had been infected to support his argument that there was a very high
probability that he could not have transmitted HIV during the relevant time period.15
[Vol. 54
III. The Judgment
Justice McKelvey began her analysis by considering whether the Crown could
establish that the accused had endangered the life of the complainant, a required
element of the charge of aggravated assault. She found that this endangerment was
established regardless of whether the accused used a condom. The finding of
endangerment was based on the 20 per cent failure rate of condoms cited by the one
expert witness at trial. In instances where the condom may have broken or fallen off,
the trial judge found that this was the equivalent of no condom being used. The
finding of endangerment was not negated during the period in which the accused had
an undetectable viral load. The trial judge held that, although the risk was greatly
reduced, the scientific evidence before her supported the position that HIV could still
be transmitted when the accuseds viral load was undetectable, particularly if he or
she had another sexually transmitted disease.16
In rejecting the relevance of viral load, Justice McKelvey stated that she was
prepared to follow the Supreme Court [in Cuerrier] in holding that the potentially
lethal consequences of unprotected sexual contact leave room for no other conclusion
than that endangerment of life has been substantiated.17 Justice McKelvey then
considered whether Mabiors conduct constituted fraud vitiating the consent of the
complainantsan inquiry that might be seen as logically prior to the determination of
endangerment. She referred to the elements of fraud from Cuerrier: deception and an
attendant deprivation to the complainants. Justice McKelvey easily found the element
of deception in the accuseds failure to disclose his HIV-positive status. The issue of
deprivation focused on whether there was a significant risk of serious bodily harm to
the complainants.
In the context of unprotected sex, this finding was straightforward and the trial
judge found that nondisclosure constituted fraud negating consent to sexual activity.
The analysis was more complex, however, in the context of protected sex. Given the
expert evidence before her that condoms fail in 20 per cent of cases, the judge held
that even in those circumstances where protection was used, a significant risk of
serious bodily harm existed if medical evidence indicated that the accused was
infectious.18 However, where the accuseds viral load was very low or undetectable
15 Ibid. at paras. 87-89.
16 Ibid. at para. 105.
17 Ibid. at para. 100.
18 Ibid. at para. 116.
I. GRANT CONDOMS AND VIRAL LOAD IN R. V. MABIOR
2009]
and the accused used a condom, these two factors together could reduce the risk of
serious bodily harm such that there was no fraud vitiating consent:
395
With respect to the condom there can, of course, be failure, breakage or
improper utilization. That being said, there was a lower risk when protection
was utilized according to medical and scientific evidence. I am persuaded that
the combination of an undetectable viral load and the use of a condom would
serve to reduce the risk below what would be considered a significant risk of
serious bodily harm.19
Thus, somewhat puzzlingly, the trial judge found that a low viral load in the context
of protected sex could endanger the life of the complainant but that it could not create
a significant risk of serious bodily harm for the purposes of fraud. Implicit in the
judgment is the finding that the threshold for endangerment of life is lower than the
significant risk of serious bodily harm required to negate fraud.
IV. Analysis
As mentioned above, there are two novel and important findings in Mabior that
warrant discussion. First, the trial judge found that an accused who does not disclose
his or her HIV-positive status to sexual partners can be convicted of aggravated
sexual assault even when a condom is used. Second, she held that when an accused
uses a condom and has an undetectable viral load, the risk of serious bodily harm is
reduced to a point where it is no longer significant enough to constitute fraud. Both of
these issues force one to confront the reasoning in Cuerrier. In broader policy terms,
these findings raise difficult questions about the appropriate scope and purposes of
criminal law and its relationship to our evolving scientific understanding of
HIV/AIDS.
There is a range of approaches that could be taken to the criminalization of
nondisclosure of HIV status. The courts could focus on the harm caused, imposing
criminal liability only when the virus has actually been transmitted.20 This approach is
consistent with the criminal laws focus on behaviour which causes harm to others.
Alternatively, the courts could focus on the risk-taking behaviour of the accused and
his or her moral blameworthiness, regardless of whether or not the virus was actually
transmitted.21 In Cuerrier, the Supreme Court of Canada took the latter approach and
19 Ibid. at para. 117 [emphasis added].
20 In the United States, only Utah takes this position. The wilful or knowing introduction of any
communicable or infectious disease into a community is the general offence. Utah Code Ann. 26-6-
(West 2008). It is upgraded to a felony when it involves HIV along with prostitution or sexual
solicitation (ibid., 76-10-1309). See also Andrew M. Francis & Hugo M. Mialon, The Optimal
Penalty for Sexually Transmitting HIV, online: (2008) 10 Am. L. & Econ. Rev. 388
21 This is the approach taken in almost all American states with HIV-specific legislation. In their
economic analysis, Francis and Mialon argue, in contrast, that the optimal outcome would involve
criminalizing only the transmission of the virus, not behaviour that risks transmission: We find that
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did not require transmission as an element of the offence of aggravated assault. In
fact, neither of the complainants in Cuerrier tested HIV-positive by the time of trial.
Rather, the concept of fraud was based on the degree of risk created by the accuseds
conduct.22
The majority in Cuerrier was particularly concerned that fraud not be defined so
broadly that any risk of harm (such as the emotional harm that may result from
deceptive sexual practices), could negate consent to sexual activity and give rise to
assault charges. They held that the deception must pose a significant risk of serious
bodily harm in order to negate consent.23 The Court conceptualized the duty to
disclose in direct proportion to the risks attendant upon the act of intercourse: the
greater the risk to the complainant, the more likely it is that the accused has a duty to
disclose.24 In light of the Courts focus on risk, the critical question arising out of the
facts of Mabior is how condoms and viral load tie into the analysis of significant risk.
A. The Use of Condoms
There are two components to the risk analysis in the determination of fraud. The
first relates to the qualitative nature of the harm at issueCuerrier requires serious
bodily harm. The second inquiry relates to the magnitude of the risk, that is, the
likelihood that the harm will ensueCuerrier requires a significant risk. With respect
to the first component, it is important to note that the risk encompassed by HIV
transmission has changed since Cuerrier. The fact that HIV/AIDS is no longer
necessarily fatal could change the risk calculation.25 However, given the nature of
HIV and its potential to cause AIDS, it is likely that the risk of transmitting HIV will
be seen as a risk of serious bodily harm as long as no cure exists.
The second inquiry is more complex: what degree of risk of HIV transmission is
significant enough to justify criminal responsibility? Arguably, because the potential
harm is so serious, any risk of transmission should suffice. But this is not what the
majority held in Cuerrier. The majority suggested, without explicitly deciding, that if
an HIV-positive accused used a condom, the risk of harm might not be significant
the mechanism that sustains the optimal outcome involves a single penalty for knowingly or
unknowingly transmitting HIV and no penalty for exposing another individual to risk of infection
without transmitting the virus (ibid. at 391). None of the US statutes criminalize persons who do not
know they are HIV-positive (ibid. at 394-96).
22 Cuerrier, supra note 4 at para. 95, Cory J.
23 Ibid. at paras. 131-34, Cory J. McLachlin J. expressed the same concern in her reasons (ibid. at
paras. 47-48). This finding has received much criticism. See e.g. John Flaherty, Clarifying the Duty
to Warn in HIV Transference Cases (2008) 54 Crim. L.Q. 60 at 65 (arguing that the Cuerrier
standard effectively imputes consent for risky sex so long as it is not too risky).
24 Cuerrier, supra note 4 at para. 127.
25 See Samantha Ryan, Risk-Taking, Recklessness and HIV Transmission: Accommodating the
Reality of Sexual Transmission of HIV within a Justifiable Approach to Criminal Liability (2007) 28
Liverpool L.R. 215 at 226-27 [Ryan, Risk-Taking].
I. GRANT CONDOMS AND VIRAL LOAD IN R. V. MABIOR
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enough to warrant criminal liability and thus that there might not be a requirement to
disclose ones HIV-positive status:
397
To have intercourse with a person who is HIV-positive will always present
risks. Absolutely safe sex may be impossible. Yet the careful use of condoms
might be found to so reduce the risk of harm that it could no longer be
considered significant so that there might not be either deprivation or a risk of
deprivation.26
The concurring minority judgment of Justice McLachlin (as she then was) explicitly
held that the use of a condom would negate fraud.
There are only a few lower court decisions that consider the issue of condom use,
probably because charges are more likely to be laid in cases involving unprotected
sex. In R. v. Edwards, the trial judge proceeded on the assumption that only
unprotected sex could be subject to criminal liability.27 Because he had a reasonable
doubt as to whether the accused had used a condom, the trial judge did not find fraud
negating consent. With respect to whether nondisclosure in the context of protected
sex is criminal, the court in Edwards held that this issue should be left to Parliament.28
Similarly, in R. v. Angnatuk-Mercier, the trial judge held that in order to convict the
accused, it must be established by the Crown beyond a reasonable doubt that
unprotected sex with him took place.29
Clearly, the trial judge in Mabior did not follow these cases. Her conclusion that
nondisclosure negates consent in the context of protected sex is a first in Canadian
criminal law. The trial judge relied on expert testimony that condoms have a failure
rate of up to 20 per cent without really explaining what this figure means. Does it, for
example, include breakage and improper use of condoms or does it refer to condoms
not providing 100 per cent protection even when used correctly?
It is important to note that a 20 per cent failure rate of condoms does not equate
with a 20 per cent chance of acquiring HIV from an act of sexual intercourse. In fact,
the rate of transmission of HIV is lower than is generally assumed. Although different
studies cite different numbers, it is estimated, for example, that in one act of
unprotected vaginal intercourse where the male is infected with HIV, the risk that the
female partner will acquire HIV may be as low as 1 in 1000. The risk in anal
intercourse is approximately 1 in 50 for the receptive partner. When used correctly,
condoms reduce the rate of transmission by up to 90 per cent, such that the risk to the
26 Cuerrier, supra note 4 at para. 129.
27 R. v. Edwards, 2001 NSSC 80, 194 N.S.R. (2d) 107, 50 W.C.B. (2d) 255 [Edwards]. Note that
Edwards is one of the few cases involving criminal charges in the context of a same-sex relationship.
See Grant, supra note 1.
28 If the failure to disclose a contagious disease before engaging in protected sex is to be a
criminal offence, it is for the Legislature to so define such activity (ibid. at para. 25).
29 [2001] O.J. No. 4729 (Ont. Sup. Ct. Just.) (QL) at para. 7.
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receptive partner in anal intercourse drops to 1 in 500 instead of 1 in 50.30 The
Canadian AIDS Society considers unprotected anal and vaginal sexual intercourse to
be high risk behaviour[s] in terms of the likelihood of the transmission of HIV,
whereas it considers protected sex to be low risk.31 The risk of transmission is
further decreased where antiretroviral medications have succeeded in reducing the
individuals viral load to an undetectable level.32 Thus, while a 20 per cent failure rate
for condoms sounds high, the trial judge failed to examine what this figure means in
terms of a risk of transmission of HIV: the key issue in determining whether fraud has
been established. A 20 per cent failure rate of condoms does not quantify the risk of
HIV transmission necessary to assess the significance of the risk.33
There are arguments for and against finding that the use of a condom negates any
potential fraud. On the one hand, as discussed above, condoms do have a risk of
failure. Condoms can fall off, break, or be used improperly. Proper use of condoms
may also be more difficult where the parties are intoxicated, as they were in many of
the sexual encounters at issue in Mabior. The question then becomes who should bear
the risk of the condom not functioning properly, particularly if the virus is
transmitted. Should the law require the infected partner to disclose his or her HIV-
positive status even when using a condom so that the uninfected partner, the person at
greatest risk, can decide whether he or she wants to bear the risk of the condom
failing? Requiring disclosure even in instances of protected sex expands the scope of
criminal liability for failure to disclose and prioritizes the autonomy of the
complainant to choose what risks she or he is prepared to accept in the context of
sexual activity.34
On the other hand, it is indisputable that, short of abstinence, the use of a condom
is the best known way to prevent the transmission of HIV. Condom use is at the
centre of public health efforts to stem the transmission of HIV.35 Thus it is certainly
arguable, as a matter of public policy, that the law should encourage individuals who
may be HIV-positive to use condoms (and encourage others to insist on the use of
condoms) with all of their sexual partners. Where possible, this argument goes,
criminal law should be consistent with broad public health interests. Even the expert
30 Carol L. Galletly & Steven D. Pinkerton, Toward Rational Criminal HIV Exposure Laws
(2004) 32 J.L. Med. & Ethics 327 at 328. See also Grant, supra note 1 at 128.
31 See HIV Transmission: Guidelines for Assessing Risk, 5th ed., (Ottawa: Canadian AIDS Society,
2004) at 24-25, online: Canadian AIDS Society
32 WHO/UNAIDS, supra note 13.
33 Of course, for any one person such statistics are meaningless. A complainant will either acquire
34 See Flaherty, supra note 23 at 74, who argues that there must be a duty to warn whenever bodily
HIV or not.
harm is objectively foreseeable.
35 See e.g. Its Your HealthHIV/AIDS online: Health Canada
I. GRANT CONDOMS AND VIRAL LOAD IN R. V. MABIOR
2009]
witness at trial disagreed with the trial judges criminalization of protected sex. The
trial judge cited the expert evidence as follows:
399
There is no scientific justification to require HIV status disclosure if a condom
is always used. There is a mutual responsibility for casual sex partners to be
aware of the innate risks of non-monogamy and to ensure their own safety by
adhering to consistent and correct condom use.36
Those who argue most forcefully against criminalization posit that it obscures the
fact that both partners involved in a sexual encounter are responsible for taking
precautions to prevent the transmission of disease.37 Criminalization puts the burden
entirely on the infected partner and masks the responsibility of uninfected partners to
insist on condom use. In response to this argument, the Supreme Court of Canada
explicitly held in Cuerrier that the infected partner has a much greater responsibility
than the uninfected partner to prevent transmission.38
Studies suggest that up to 40 per cent of individuals who have tested HIV-
positive do not disclose their status to any of their sexual partners.39 One study found
that 52 per cent of sexually active, HIV-positive men did not disclose their status to
one or more sexual partners. Of these, a significant number engaged in unprotected
sex, particularly with casual partners.40 However, the incidence of nondisclosure must
be seen in light of the fact that as many as two-thirds of all HIV transmissions occur
before the infected individual knows that he or she is infected.41 This fact has
implications for the utility of criminal law in preventing transmission and also points
to the importance of consistent condom use.
Some studies suggest that the use of condoms is decreasing as a result of the
optimism over new treatment avenues for HIV/AIDS.42 As indicated above, however,
the use of condoms is crucially important if we are to curb the transmission of HIV.
36 Evidence, Dr. Smiths medical report and review of the accuseds medical and public health
records at 12, cited in Mabior, supra note 8 at para. 72.
37 Matthew Weait, Taking the Blame: Criminal Law, Social Responsibility and the Sexual
Transmission of HIV (2001) 23 J. Soc. Welfare & Fam. L. 441 at 450-51.
38 Cuerrier, supra note 4 at para. 144.
39 Mike Allen et al., Persons Living with HIV: Disclosure to Sexual Partners (2008) 25
Communication Reports 192 (compiling data from fifty-one studies on HIV disclosure from the past
twenty years). For an overview of some of these studies, see also Julianne M. Serovich & Katie E.
Mosack Reasons for HIV Disclosure and Nondisclosure to Casual Sexual Partners (2003) 15 AIDS
Education & Prevention 70.
40 Gary Marks, Jean L. Richardson & Norma Maldonado, Self-disclosure of HIV Infection to
Sexual Partners (1991) 81 American Journal of Public Health 1321.
41 See Burris et al., Criminal Laws and Behavior, supra note 6 at 476-77; James S. Koopman et
al., The Role of Early HIV Infection in the Spread of HIV Through Populations (1997) 14 Journal
of Acquired Immune Deficiency Syndromes & Human Retrovirology 249.
42 See e.g. Gary Marks, Scott Burris & Thomas A. Peterman, Reducing sexual transmission of HIV
from those who know they are infected: the need for personal and collective responsibility (1999) 13
AIDS 297.
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While everyone should disclose his or her HIV status to potential sexual partners, the
criminal law should be reserved for the most egregious cases of nondisclosure in the
context of unprotected sex. Those who use condoms are making efforts to avoid
transmission of the virus. If the courts send the message that nondisclosure is criminal
regardless of the precautions taken, this could decrease the incentive to use condoms.
I recognize that this view interferes with the right of individuals to make their own
choices about the degree of risk they are willing to accept in sexual activity. There
may be a small number of potential complainants who acquire the virus and yet do
not have access to the criminal justice system under this model because a condom
was used. Having said this, however, criminal prosecution after the fact does little to
undo any harm caused by the failure to disclose. The states most coercive power
should be limited to the most blameworthy cases.43
Modifying sexual behaviour requires a multifaceted approach; criminalization is
not, on its own, sufficient. A recent American study, for example, found that persons
at high risk for HIV (both those who had been tested and those who had not) did not
alter their sexual practices (i.e., disclosure and the use of condoms) based on whether
they believed the law required disclosure or condom use, thus casting doubt on the
broad deterrent value of criminalization.44 Criminalizing nondisclosure regardless of
protection will not protect society from persons such as Cuerrier45 or Mabior, until
after they have engaged in sexual intercourse and put potential complainants at risk.
But the law serves a symbolic function as well as a deterrent function. Even where
deterrence is difficult to prove, it is important that the law send messages that are
consistent with well-accepted public health policy. The non-criminalization of
protected sex, at the very least, does not discourage condom use.
B. Viral Load
With the development of new antiretroviral medications, it is now possible to
reduce the presence of HIV in a persons system to the point where it can no longer
43 Most of the HIV-specific criminal offences in the US do not distinguish between protected and
unprotected sexual activity. California, however, criminalizes only unprotected sex and only where
there is an intent to transmit the virus. See Cal. Health & Safety Code 120291 (West 2007). I note
that the use of a condom will not necessarily rule out the possibility of tort liability for the individual
who did not disclose his HIV status. See generally ter Neuzen v. Korn, [1995] 3 S.C.R. 674, 127
D.L.R. (4th) 577 [ter Neuzen], in which a woman who contracted HIV in the process of artificial
insemination sued her doctor for negligence.
44 Burris et al., Criminal Laws and Behavior, supra note 6 at 476. The authors do note, however,
that this aggregate finding does not rule out the possibility that the criminal law does serve as a
deterrent in individual cases. The authors suggest that the role for criminal law in controlling sexual
risk behavior is the same role one might reasonably assign to a politician visiting a battlefront: shut up
and stay out of the way (ibid. at 473).
45 Cuerrier specifically rejected advice to disclose his status on the basis that he would never have a
sex life if he did so (supra note 4 at para. 78).
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I. GRANT CONDOMS AND VIRAL LOAD IN R. V. MABIOR
2009]
be detected by our current testing standards.46 This does not mean that the virus is no
longer present in the persons immune system. Somewhat contradictory evidence was
presented in Mabior as to the potential of infecting ones partner when ones viral
load is undetectable. However, the preponderance of the evidence indicated that while
an undetectable viral load decreases the likelihood of transmission significantly, it
probably does not reduce it to zero, particularly if the accused has other sexually
transmitted diseases.47 Thus, this issue also raises questions about the threshold of
risk. On the one hand, if one accepts that the use of a condom reduces risk such that
criminal liability should not attach, why would the same rationale not apply to an
undetectable viral load? Both factors significantly reduce the risk of HIV
transmission. At what point does the risk of transmission become so low that it is no
longer considered significant? The Supreme Court of Canada did not address this
issue because, at the time of Cuerrier, we did not have the capacity to reduce a
persons viral load so significantly.48
The trial judge clearly acknowledged that there is a point at which the risk of HIV
transmission is insufficient to meet the definition of fraud. She decided that this point
is reached where the accused used a condom and he or she had an undetectable viral
load at the time of the sexual contact. One can understand this reasoning; these two
factors cumulatively produce a substantial reduction in the risk of transmission.
However, the viral load issue is complicated given our current scientific
understanding. We cannot yet establish the precise risk of transmission for someone
with an undetectable viral load. Ones viral load paints a snapshot in time and does
not rule out transmissibility altogether. How close in time to the act of intercourse
would the finding of an undetectable load have to be to negate fraud? How often
would one have to be tested in order to establish a pattern of undetectability? It is also
important to note that we may develop new technologies to detect the virus at levels
which are currently undetectable. Thus what is undetectable today may not be so in
the future.49
46 Undetectable Viral Load online: Aidsmap
47 Mabior, supra note 8 at para. 72. See also Marks, Burris & Peterman, supra note 42 at 297;
Pamina M. Gorbach et al., Dont ask, dont tell: patterns of HIV disclosure among HIV positive men
who have sex with men with recent STI practising high risk behaviour in Los Angeles and Seattle
(2004) 80 Sexually Transmitted Infections 512 at 513.
48 This example also demonstrates the difficulty in relying on judicial precedents which were
decided at a time when our scientific knowledge about HIV/AIDS was very different than it is at
present.
49 This may have particular relevance to negligence actions against someone responsible for
transmitting HIV. In ter Neuzen, for example, the Court acknowledged that the defendant doctor could
not reasonably have foreseen the possibility of infection from an artificial insemination procedure
based on the scientific knowledge at the time of his actions (supra note 43). If our scientific
knowledge evolves to a point where it becomes medically possible to declare that an HIV-positive
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If we accept the legal relevance of viral load, difficult questions arise regarding
the burden of proof. Would an undetectable viral load constitute a defence such that
the accused would have the burden of proving that his or her viral load was
undetectable at the relevant time? The alternative would be to assign the Crown the
burden of establishing beyond a reasonable doubt that the accuseds viral load was
not undetectable at the time of the sexual activity in question. This burden of proof
would be virtually impossible to meet, particularly where there were multiple acts of
intercourse or where repeated test results were not available. Liability could then turn
on whether and when the accused was tested and on the availability of those test
results.50 In addition, advances in scientific knowledge would likely impact several
areas of HIV transmission prosecutions. For example, if we learn that the virus is not
transmissible below a certain level, would proof of that viral level negate fraud and
obviate the duty to disclose? If so, then surely the Crown would have to prove that
the accuseds viral load was not at this level in order to obtain a conviction. In the
only other case in which I was able to find a reference to viral load, the trial judge
rejected its relevance, stating: [I]t seems to be a fragile defence. All it reveals is the
state of the blood tested on the day in question, not two weeks earlier, not two weeks
later. To rely on slips of paper from a lab seems fraught with hazard.51
In addition to these practical obstacles to using viral load as a measure of risk in
HIV nondisclosure cases, there are also significant policy concerns surrounding the
use of viral load. Considering viral load in liability may open the door to HIV-
positive individuals making their own risk-assessments about transmissibility and
disclosure. For example, some literature suggests that men are less likely to disclose
their HIV-positive status when they have a low or undetectable viral load.52 The
following quote reveals the dilemma:
Lowering viral load and keeping it low may reduce the likelihood that a
seropositive person may infect a partner during sexual contact. However, as
treatment options enable people with HIV infection to live longer and feel
healthier, those people may become more sexually active. Those who believe
that that low viral load renders them non-infectious may stop using condoms. …
individual cannot transmit the virus with a particular viral load, transmission would likely not be
reasonably foreseeable.
50 The accuseds viral load was used as evidence in the recent case of Charles Mzite in British
Columbia. The main issue at trial was whether the accused knew he was HIV-positive when he had
unprotected sexual relationships with the four complainants. An expert testified that, given the
accuseds viral load and low CD4 cell count, the accused must have had HIV for at least five to seven
years. This in turn was relevant to whether the accused knew of his status. See R. v. Mzite (2 March
2009), Victoria 140259 (B.C.S.C.), Johnston J.; Louise Dickson, Mzites path from Africa to jail
Victoria Times Colonist (3 March 2009), online: Times Colonist:
51 See R. v. McKenzie, (9 March 2006), Windsor (Ont. Sup. Ct. Just.), Donohue J. See also Don
Lajoie, Judge Tosses HIV Assault Case Windsor Star (10 March 2006) A3.
52 Marks, Burris & Peterman, supra note 47. See also Gorbach et al., supra note 47 at 513.
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Recent studies suggest that optimism about the new HIV therapies is associated
with sexual risk-taking in MSM [men who have sex with men].53
It is understandable that the trial judge wanted to limit the potentially sweeping scope
of criminal liability she extended to those who use condoms. However her means of
achieving this end, by combining the use of a condom and low viral load, is
problematic.
There is a compelling public policy rationale for encouraging condom usage. In
contrast, there is less justification for including viral load in the risk calculation.
Doing so could encourage people to make their own assessments about their
infectivity before deciding on disclosure, thus potentially increasing the risk of
transmission. Just as it is important to encourage the use of condoms as a public
health measure, it is equally important not to send the message that people can assess
their own viral loads and determine their own risk of transmission. When this concern
is added to the problems created by imperfect scientific information, there is, at
present, even less justification to employ viral load in the equation. It is possible that,
as our understanding and ability to measure viral load develop, it will become a more
manageable standard. But we have not yet reached that point.
In my view, Justice McKelvey should have held that condom use negates fraud.
Such a finding probably would not have changed the outcome in Mabior given the
dubious evidence of occasional and unreliable condom use. If the trial judge had
limited criminal liability to unprotected sex, it would not have been necessary for her
to consider the relevance of viral load because she only did so in the context of
protected sex. The trial judge agreed that, in the absence of condom usage, a low viral
load could not negate fraud.
Conclusion
It is clear that Mabior is a particularly troubling case and one that understandably
evoked outrage in the trial judge. An HIV-positive man preying on vulnerable teenage
girls and refusing to disclose his HIV-positive status makes a compelling case for
prosecution. As the judge stated in convicting the accused:
The accuseds conduct was deplorable and despicable in all of the
circumstances and must be condemned in the strongest possible terms. Those
that are infected with HIV cannot inappropriately and indiscriminately engage
in sexual relationships for their own pleasure without regard to the
consequences to others.54
However, particularly egregious cases do not necessarily provide the best context in
which to set broad criminal law policy. The outrageous nature of the facts in Mabior
should not be invoked to extend the reach of criminal law to all potential accused
53 Marks, Burris & Peterman, ibid. at 300 [footnotes omitted].
54 Mabior, supra note 8 at paras. 162-63.
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who do not disclose their status, including individuals who genuinely attempt to
protect their sexual partners by using a condom. Disclosure is extremely important
and may be possible in the large majority of cases. Nevertheless, there may be
reasons, such as intimate violence, that make disclosure extremely difficult or even
dangerous for an individual. The social context of disclosing ones HIV status should
not be ignored.55 Professor Ryan argues, for example, that where disclosure creates
significant risks for the infected partner, the criminal law should view careful use of
condoms as a substitute for disclosure.56
The vexing issues in this case demonstrate how unwieldy prosecutions for failure
to disclose HIV can be. Tales of intoxication, condoms breaking and falling off, poor
memory of whether a condom was used at all, and conflicting evidence about the
transmissibility of the virus in someone who has an undetectable viral load all
demonstrate the problems involved in such prosecutions.57 The Manitoba Court of
Appeal will soon have to decide whether viral load is relevant to liability and, if so,
who bears the burden of proof of establishing the accuseds viral load at the relevant
time. Similarly, the court will need to address whether the use of a condom
sufficiently reduces the risk of bodily harm to preclude criminal liability. The answers
to each of these issues will determine which cases can be prosecuted in the future.
One hopes that the Manitoba Court of Appeal will take the opportunity to provide
some certainty in this challenging area of criminal law.
Mabior demonstrates the difficulties in quantifying risk in the face of incomplete
scientific knowledge about the factors that contribute to the risk caused by the
accuseds conduct. There are no easy answers to the issues raised in Mabior. To argue
against the prosecution of those who fail to disclose their status in the context of
protected sex is not to suggest that nondisclosure is ever morally justified. But the
criminal law is not coextensive with morality. When one balances, on the one hand,
the limited utility of criminal prosecution in the context of protected sex with, on the
other hand, the importance of promoting the use of condoms, the balance should
come down in favour of the latter.
55 Ryan, Risk-Taking, supra note 25 at 239-42. Professor Ryan posits the possibility of a defence
to liability for women who are unable to disclose their status because of their fear of violence and
inability to negotiate condom usage.
56 Ibid. at 239.
57 Further problems arise if the complainant is HIV-positive; the complainants sexual history then is
subject to scrutiny. See Grant, supra note 1.
