A former Barrie, Ont. woman has won her case in the Ontario Court of Appeal after she made international headlines nearly a decade ago for not telling her sexual partner she was HIV positive.
In 2013, Jennifer Murphy was convicted of aggravated sexual assault for HIV non-disclosure. She was sentenced to more than three years in prison, and her name was added to the national sex offender registry for life.
At the time it was generally understood that a person did not have to disclose if they had a low viral load and used a condom.
In Murphy’s case, a condom was not used, but testing showed that her viral load at the time was undetectable.
She was acquitted on Aug. 11 based on fresh expert evidence testifying that meant she posed zero risk of transmission as she was on antiretroviral medication.
“This case is an important significant milestone in the fight against HIV criminalization,” said India Annamanthadoo, a policy analyst with the HIV Legal Network and member of the Canadian Coalition to Reform HIV Criminalization. “It proves what community advocates have been saying for years that HIV non-disclosure laws in Canada are unscientific and discriminatory.”
Last month, the coalition released its second consensus statement calling for changes to the Criminal Code, noting criminal law must only be used as a last resort and limited to cases of actual intentional transmission of HIV.
“It’s the product of extensive community consultation across Canada and what we found out in this consultation is the community is in support of urgently needed law reform on the issue of HIV non-disclosure,” Annamanthadoo said.
The statement describes Canada as a “global hotspot” for prosecutions, saying there have been more than 220, pointing to a patchwork of policies across the county.
“What it means is that a person living with HIV in one Canadian jurisdiction faces a different criminal law than someone living in another jurisdiction,” said Annamanthadoo.
Advocates say Murphy’s case opens the doors for others, like Chad Clarke, who spent more than three years in prison for HIV non-disclosure, with his name added to the national sex offender registry.
“When my charges were being heard, I was undetectable,” said Clarke. “I am still looking over my shoulder. I feel like I’m still doing time even though I’m back out in society. It doesn’t allow me to be me.”
As part of her argument, Murphy’s lawyer asked the court to create a new standard in which there is no “realistic possibility of transmission”: specifically when a person has a suppressed viral load and is on antiretroviral medication.
However, the court declined to make that judgment, saying in its decision, “the dynamic environment of a trial court is better-suited to ensuring that a factual record is sufficient to decide the issues to be decided.”
The decision comes as the federal government announced last month that it would hold consultations with key stakeholders in October on how to modernize HIV-non-disclosure laws.
In a statement, Minister of Justice David Lametti told CTV News, “Our government is committed to challenging and reducing the stigma and discrimination associated with HIV and AIDS by working with provinces, territories, and stakeholders to consider evidence-based changes to the justice system. Progress on this important issue is possible because of the hard work of advocates who have pushed for change.”
Clarke says he wants to see a Canada that is not only HIV-free but free of discrimination and prosecution.
“My children don’t know a world where there hasn’t been HIV or AIDS in the world, and they don’t need to see people go to jail because they have a hidden disability,” Clarke said.
“Nobody goes out and maliciously tries to pass it on. We need to do better, and I think Canada can do better,” he concluded.
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