Canadian HIV/AIDS Legal Network welcomes Crown decision to drop criminal charges in Hamilton HIV case: guidelines needed

Press Release
But guidelines needed to avoid unsound, unjust prosecutions

TORONTO, April 22, 2010

The Canadian HIV/AIDS Legal Network welcomed the announcement at Hamilton’s courthouse this morning that the prosecution is staying the criminal charge of aggravated sexual assault against Justus Zela. He was charged in February 2009 after an ex-partner alleged they had oral sex without Zela disclosing that he had HIV. The ex-partner has not tested HIV-positive.

“We’re pleased with the Crown’s announcement this morning, but it must go further. This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

According to information available to the Legal Network, the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with Mr. Zela performing oral sex, rather than receiving it.

“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott. “Guidelines should be informed by the evidence about actual risks of transmission. They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.

Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by the responsible practise of safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.

Leading organizations and members of the HIV community — including health care providers, service providers, people living with HIV, academics and lawyers — have questioned the expansive use of the criminal law with respect to HIV non-disclosure in Canada. While recognizing that there is a limited role for criminal law on this issue, many legitimate concerns exist as to the impacts of this trend. Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.

About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network ( promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised by HIV/AIDS.

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