Rethinking Risk: The Relevance of Condoms and Viral Load in HIV Nondisclosure Prosecutions, Isabel Grant, McGill Law Journal (2009)

In this article, the author explores the relevance of condom use and viral load to HIV criminalization laws in Canada through a review of R. v. Mabior. This case is of particular significance because it is the first and only in Canada to both “criminalize nondisclosure in the context of protected sex” and “hold that, in the context of protected sex, a very low or undetectable viral load can sufficiently reduce the risk of serious bodily harm to preclude a finding of fraud negating consent.” The author disagrees with the trial court’s conclusion on both counts. First, the author asserts that criminal law should apply only to the most “egregious cases of nondisclosure in the context of unprotected sex,” pointing out the danger of de-incentivizing condom use if criminal penalties apply to cases of nondisclosure regardless of whether protection was used. Finally, she argues that viral load should not be considered in cases of nondisclosure, due to burden of proof issues at trial, the possibility of “HIV-positive individuals making their own risk-assessments about transmissibility and disclosure,” and because we still have an imperfect understanding of the exact transmission risk presented by an undetectable viral load.