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Ontario’s Supreme Court recently overturned a number of convictions regarding two men who tested positive for HIV. The men had been convicted of sexual assault, but the Supreme Court overturned these convictions based on a case a year prior and a clarification of rules regarding HIV disclosure by the Supreme Court.
One man was convicted in 2009 on two charges of sexual assault when he did not disclose his HIV status. Another man was convicted in 2010 on five counts of aggravated sexual assault and another count of sexual assault when he had sexual relations with two women and did not inform them of his HIV-positive status. A case that was decided about a year ago served as the men’s central argument to have their own convictions overturned. That case found that people who have HIV are not legally obligated to tell sexual partners about their HIV-positive status if they have a low viral load and they use condoms during sexual intercourse.
The Court of Appeal for Ontario ordered a stay for one of the men’s convictions, effectively dismissing the charges. The Court of Appeal for Ontario upheld the other man’s convictions for aggravated sexual assault, but it ordered that a new trial take place on the man’s single sexual assault charge. The court reasoned that the man used a condom, as stated by the woman involved. However, there was no evidence present regarding whether the man had low viral load at the time of the sexual contact. The Court of Appeal for Ontario sent the case back for a new trial to determine if there was a “realistic possibility of transmission.
Ontario criminal defence lawyers help defendants who are charged with serious sex-related crimes, including rape and sexual assault. They may be able to explain any new changes in the law based on higher courts’ decisions.
Source: The Star Canada, “HIV disclosure cases overturned by Ontario appeal court“, The Canadian Press, June 24, 2013