Why this Nova Scotia boxer’s acquittal is big news for Canadian HIV criminalization

The case of Claude Thompson is an important step forward for HIV law in Canada, but you wouldn’t know it from reading the news.

On Feb 15, the Nova Scotian former boxer was acquitted on two counts of sexual assault causing bodily harm for not disclosing that he had HIV to two female sexual partners. Thompson’s case is important because it is considered one of the first in Canada to affirm that people with a low viral load are at negligible risk of transmitting the virus even if not using a condom, and therefore do not have a legal duty to disclose their status.

For HIV legal activists in Canada, who have been fighting for recognition that antiretroviral drugs can suppress the infectiousness of the disease, the case is a major victory.

But The Canadian Press story about Thompson’s case did not so much as mention the key issue of viral load, and other stories in the CBC and the Halifax Chronicle Herald skimmed over the issue without a thorough explanation or context.

So to make sense of what just happened in Nova Scotia, here is the Thompson case in context.

When Thompson’s case was brought to trial in the Nova Scotia Supreme Court in 2016, the law, decided by the Supreme Court of Canada in a case called R v Mabior, required people who were HIV positive to disclose their status — unless they had a low viral load and were also wearing a condom — or else face a charge of aggravated sexual assault.

Thompson had sex with two women, both of whom said he did not disclose his status, and one of whom said he did not use a condom.

Thompson’s viral load was more complicated. It had been thoroughly suppressed a few months before he had sex with the two women, but Thompson said his medication had been stolen and it took him a few weeks to get more. In the meantime, his viral load rose from nearly undetectable to low.

In trial, Thompson gave conflicting testimony; from dates and times to whether or not he had flare ups of genital herpes. Justice Suzanne Hood declared him unreliable, and found that he probably had not disclosed his HIV status — as the two women said — and had not used a condom in at least one case. Under Mabior, that should have been enough to convict him.

But at this point, Justice Hood made an important break from Mabior. The most recent science, she said, agrees that people with low viral load, like Thompson, have a negligible chance of actually passing on the virus, even without a condom.

Thompson’s viral load, which was probably hovering somewhere around 1,000 copies of the virus per millilitre of blood, was still too low to be reasonably dangerous. Therefore he was not, Hood said, guilty of aggravated sexual assault.

But then Justice Hood’s judgment took another unexpected tack. Even though she ruled that there was no significant chance of Thompson passing on the virus, the two women had spent months worrying about contracting HIV. Their mental suffering was enough that Thompson should be convicted of assault causing bodily harm for the mental suffering he caused by not disclosing.

When HIV activists, like the lawyers at the Canadian HIV/AIDS Legal Network, heard about Justice Hood’s decision, they were taken aback. Hood’s recognition that people with low viral load were safe was good news, but her final judgment was catastrophic.

If it stood, it would set the precedent that causing someone to worry about HIV would amount to assault even if the sex was, in fact, perfectly safe.

The Legal Network and two other HIV activist organizations immediately signed on as intervenors in an appeal.

On Feb 15, 2018, the HIV campaigners got what they wanted. The Nova Scotia Court of Appeal agreed with Hood that a low viral load removed any substantial risk, but disagreed that simply causing the fear of having contracted HIV amounted to assault. The court acquitted him on both charges.

A Nova Scotia Court of Appeal ruling is not binding in the rest of Canada, but may well be taken into account by other judges in other provinces.

“This is an important case because it rejects this attempt to expand the criminal law even more,” says Nicholas Caivano, an analyst and lawyer with the Canadian HIV/AIDS Legal Network.

“I think if the court had accepted that argument, it would have legitimized that it’s warranted to be so anxious and nervous about HIV that you can criminalize a person for not disclosing their status, even when they have no duty to disclose according to the Supreme Court.”

Thompson’s case is an important step in legal recognition of the medical consensus on HIV transmission, and may signal a sea change in how courts treat HIV disclosure. But now it’s up to journalists to follow the lead of the courts and learn to accurately and completely report the science on HIV.

The courts can stop punishing people who have almost no risk of transmitting the virus, but only good journalism will make Canadians less afraid of it.