Canada court: Low HIV? Don’t have to tell partner

Updated: 10/10/2012 1:35 AM KSTP.com

(AP) TORONTO - The Supreme Court of Canada ruled Friday that people with low levels of HIV who use condoms during sex do not need to disclose their condition to sexual partners. HIV/AIDS activists called it only a partial victory.

In a 9-0 ruling, the court said it was reflecting the medical advances in treating the virus that causes AIDS.

The court first ruled on the issue in 1998, saying that people with HIV must inform their sex partners of their condition or face a charge of aggravated sexual assault. That charge carries a maximum life sentence.

HIV/AIDS activists had argued that the 1998 ruling created confusion and was applied unevenly, and they wanted the decision struck down.

"Fourteen years later, despite significant advances in scientific knowledge, the Supreme Court decides condoms are not enough," the Canadian HIV/AIDS Legal Network said in a statement. "In practice, today’s ruling means that people risk being criminally prosecuted even in cases where they exercised responsibility and took precautions, such as using condoms, which are 100 percent effective when used properly."

The group’s statement warned that the decision "will seriously undermine public health."

The court did not specify acceptably low HIV levels but noted that the transmissibility of HIV is proportional to the level of HIV in a patient’s bloodstream and that a patient’s HIV levels shrink significantly when undergoing antiretroviral treatment.

The Supreme Court ruled on two separate cases from Quebec and Manitoba, where prosecutors argued that HIV carriers have a duty to inform their partners regardless of the risk, so they can make an informed decision.

One case involves Clato Mabior, who has since been deported to South Sudan. Mabior had sex with nine women between 2004 and 2005 without telling the women he was HIV positive. None of the women contracted the disease.

Mabior was sentenced to 14 years in prison after being convicted of aggravated sexual assault in six of nine of the cases. He was acquitted of the remaining three because the judge ruled that his low level of HIV and the fact that he wore a condom negated his duty to inform the women.

The Manitoba Court of Appeal later overturned four of his convictions, saying not all of the women were exposed to "significant risk."

The Supreme Court said Friday that three of Mabior’s convictions should be restored because he did not use a condom, and one acquittal was upheld because he did use a condom and had a low viral load.

The other case involves a woman from Quebec who had unprotected sex with her partner without first informing him that she was HIV-positive. A publication ban prevents naming the woman, who is referred to in Supreme Court documents only as "D.C."

The woman was initially found guilty of sexual assault and aggravated assault, but that conviction was overturned by the Quebec Court of Appeal on the basis that her HIV levels were undetectable during the period that the charges covered.

The Supreme Court upheld the woman’s acquittal.

(Copyright 2012 by The Associated Press. All Rights Reserved.)