The trial of Ottawa LGBT activist, Elliott Youden, who was acquitted of aggravated sexual assault against a Carleton student June 4, has sparked a conversation about HIV-positive individuals and the law.
Youden had been accused of failing to disclose his HIV-positive status before engaging in a sexual encounter with the student on July 2010. The Carleton student’s name is protected by a publication ban.
After a mistrial in January 2014, the not-guilty verdict was delivered after a lack of credibility for both Youden and the Carleton engineering student.
While cases like Youden’s are rare, they have recently become more prevalent, said Youden’s defense attorney, Ian Carter. It is important to retain written records of online communication between sexual partners in order to avoid legal disputes, Carter added.
Currently, the law states that if a person declines to disclose their status to a sexual partner, regardless of whether the virus is actually transmitted, they can be charged with aggravated sexual assault. If convicted, the guilty party can be sentenced to a lengthy prison sentence and be placed on the sex offender registry.
In October 2012, the Supreme Court of Canada ruled that people living with low levels of HIV who use condoms during intercourse do not need to disclose their status to their sex partners.
But some say the law is unfair and discriminates against HIV-positive people.
“To protect themselves, some people who are HIV-positive chose to never have sex, while others only engage in low-risk sexual activities, and always have condoms,” said Alison Symington, the co-director of research and advocacy at the Canadian HIV/AIDS Legal Network.
“Before engaging in sexual activities for some people, they will make sure they have proof, such as revealing their HIV status in front of others as well. These are the average steps people living without the virus do not have to do, or even think of.”
In Canada, there are several organizations and programs that offer support for the HIV community including the Canadian AIDS Society, HIV/AIDS Legal Clinic of Ontario, Canadian Aboriginal AIDS Network, and Voices of Positive Women.
Yet HIV-positive people do not always have access to these organizations in their own community, Symington said. This could be because of a lack of funding among other reasons. This can lead to individuals not receiving the services or treatments that they require, she said.
The AIDS Committee of Ottawa (ACO) provides services and advocacy in the city.
Khaled Salam, the ACO’s executive director of the ACO said while legal assistance is important, “HIV is a medical issue and not a legal one, and the law cannot replace HIV education/prevention/awareness-raising programs.”
“In an ideal world, we would all be able to talk about sex and our sexual health openly and honestly, and negotiate safer sex,” he said. “However, we live in a world where disclosing one’s HIV status means one may be met with violence, stigma and criminalization.”
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