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Disclose risk of HIV: lawyer

By: Mia Rabson

Posted: 02/9/2012 1:00 AM | Comments: 0 (including replies)

Clato Mabior

OTTAWA -- Until HIV is no longer considered a devastating illness, people must disclose to sexual partners if they have been diagnosed with it, a Manitoba Justice lawyer argued in the Supreme Court on Wednesday.

Elizabeth Thompson made the argument in a government appeal of a case involving an HIV-positive Manitoba man who was convicted in 2008 of aggravated assault for having sex with six women without disclosing his HIV status.

In 2010, Clato Mabior was acquitted of four of the charges on appeal. The Manitoba Court of Appeal ruled if an HIV-positive person wears a condom or has a low viral load and, therefore, a low risk of transmitting the virus, sex does not pose a risk of serious bodily harm.

None of Mabior's partners contracted HIV.

But Thompson tried to convince the court that was an incorrect ruling, arguing someone cannot give consent to have sex without knowing all of the risk they might be taking.

"Where there is any potential exposure then disclosure is required," Thompson told the court.

She said a mathematical model determining the level of risk is irrelevant to a person if they end up getting infected with HIV.

She added while modern medical advances have prolonged life, the consequences of being diagnosed with HIV are still "devastating."

"It is still the kind of disease that causes serious bodily harm to a person," Thompson said.

The Manitoba appeal was one of two the high court heard related to the requirement to disclose HIV status to sexual partners. The other involved a Quebec woman convicted of aggravated assault for not disclosing her HIV status to her ex-spouse.

Like Mabior, the Quebec woman was subsequently acquitted on appeal by a court that ruled because her viral load was low, she did not pose serious risk of bodily harm to her partner. A publication ban prevents her from being named in order to protect the identity of her accuser.

Mabior's lawyers argue forcing an HIV-positive person to disclose their HIV status, even if their low viral load makes transmission extremely unlikely, strips them of their privacy rights.

mia.rabson@freepress.mb.ca

Republished from the Winnipeg Free Press print edition February 9, 2012 A6

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