Understanding the Law

Precedent Setting Cases

Criminal prosecutions for HIV non-disclosure, exposure and transmission have occurred in jurisdictions all over the world. Some recent prosecutions have brought welcome decisions, for example, those that pay close attention to current scientific evidence showing some acts included negligible or no HIV transmission risk. At other times, decisions have been remarkably conservative in their approach to risk or have ignored HIV science altogether.

Zaburoni v The Queen

Clarifies that recklessness regarding HIV transmission risk is not the same as intention to transmit HIV. This ruling means that if people are convicted of having sex without disclosing their HIV status, they will be convicted of lesser charges with lower penalty.

New Zealand Police v Justin William Dalley

Clarifies that use of a condom satisfies the requirement to take ‘reasonable care’ to prevent HIV transmission during vaginal sex, and that ‘failsafe’ precautions are not required by law. Also finds that oral sex without a condom (and without ejaculation) satisfies the standard of  ‘reasonable care and precautions’. This ruling means that disclosure of HIV status before vaginal sex is not required as long as a condom is used. Disclosure before oral sex is not required.

Her Majesty the Queen v. Henry Gerald Cuerrier

Ruling that failure to disclose HIV status constitutes fraud. Consequently, a partner’s consent to unprotected sexual activity is not valid. This ruling allows people with HIV in Canada who do not disclose their HIV-status before sex to be prosecuted under sexual assault laws.

R. v. Mabior

Ruling on “significant risk of bodily harm” which ostensibly found that people with HIV in Canada do not need to disclose their HIV-status before sex only if (i) the accused’s viral load at the time of sexual relations was low, and (ii) condom protection was used.