The Gray Areas of Canadian Law

Lise Gotell’s lecture on Wednesday has been circling around my mind for the last couple of days. HIV and AIDS are two areas I’m quite unfamiliar with, so the issue of non-disclosure was completely new to me. Gotell said her argument was essentially that we should separate charges of HIV non-disclosure from aggravated sexual assault and simply treat it as assault, criminalizing only when transmission of HIV actually occurs.

I’m inclined to agree with the latter half of the statement; if transmission does not occur and the sex was consensual, no harm done, right? I am still working through the former half, though, so I started looking into what an assault charge actually looks like. There are many different kinds of assault, sexual being just one of them. To commit assault is to “apply force intentionally to another person, directly or indirectly” and aggravated assault is to “wound, maim, disfigure or endanger the life of the complainant” (Lawyers.ca). This means that you can be charged for assault even if no physical harm was done, which is something I never knew before. I think, then, I would venture to say non-disclosure in my opinion warrants an assault charge (although the word “force” here could complicate things), and transmission of HIV due to non-disclosure warrants aggravated assault. I’d like to hear others opinions on this as well, but I think it’s so important to be honest about any potential harm you could cause another person. Not to give someone the choice and not to respect their rights to maintaining their health is to do damage to integrity. We talked about the fact that the harm of sexual assault was harm to our sexual and bodily integrity, and I think non-disclosure works in a similar way.

Throughout all this, I realize that I am over-simplifying. Gotell also talked about one’s ability to disclosure not always being possible. This throws a pretty heavy wrench in my thinking. I did a quick Google search to try and find some cases where a person claimed they were unable to disclose. I’m wondering how a case might be treated if a person who raped someone who was HIV positive contracted HIV, and how both the rapist and victim would be handled then. What about a person in an abusive relationship, what if they could find themselves in danger in disclosing?

Laws are always evolving, but I feel sort of hopeless that we’ll ever reach a point in our legal system where all criminal possibilities will be addressed and all will be addressed fairly and justice will always be served. I think the idea that the police are safe and here to help is becoming one of those flighty lies I have to tell myself to feel like I can even leave the house in the morning.