HALIFAX — Nova Scotia's highest court has overturned the sexual assault convictions of an HIV-positive former boxer who slept with two women, saying their consent wasn't diminished by the man not disclosing his condition.
Claude Thompson was found guilty of sexual assault causing bodily harm of two women in Antigonish, N.S., and sentenced to 30 months in jail.
In a written ruling released Thursday, the Appeal Court of Nova Scotia acquitted him.
"The sole issue in this case is whether psychological harm said to have been caused by non-disclosure of HIV status vitiates consent to sexual activity. The short answer is no, it does not," Justice Duncan Beveridge wrote for the three-judge panel.
The appeal court quoted one expert who said HIV is no longer lethal, and another who said it's now much easier to manage than diabetes.
'Morally reprehensible' but not a crime
"Failure by a sexual partner to disclose that he or she has a sexually transmitted disease is morally reprehensible, but it is not usually a crime. Most STDs can be cured with appropriate treatment or do not constitute a serious health threat," wrote Beveridge.
The appeal attracted national interest: HIV/AIDS groups from Ontario and Quebec, as well as the Canadian HIV/AIDS Legal Network, had intervener status.
The appeal court said the groups backed Thompson's claim of legal error, "and fear the potential implications of the trial judge's ruling on people living with HIV."
The case dates back to December 2011. Thompson, who had moved to Antigonish from Ontario, had testified that he told both women he had HIV and used a condom, but the trial judge, Justice Suzanne Hood, wasn't convinced.
Women suffered psychological harm
Still, she found that HIV transmission was unlikely because of the specific circumstances of the two cases, and neither woman did contract HIV.
Hood acquitted Thompson of the more serious charges of aggravated sexual assault.
But she found the women had suffered psychological harm from not knowing whether the virus had been transmitted, which amounted to bodily harm and, coupled with his deception, ultimately "vitiated" their consent. She convicted him of the lesser charge of sexual assault causing bodily harm.
Stress from being lied to, however despicable the deception may be, is simply not sufficient to vitiate consent for the purposes of the criminal law.Justice Duncan Beveridge
But the appeal court disagreed.
"Stress from being lied to, however despicable the deception may be, is simply not sufficient to vitiate consent for the purposes of the criminal law," Beveridge wrote.
"Worry, stress, anger are natural emotions on learning of unwittingly being exposed to HIV. But absent a significant risk of serious bodily harm, satisfied by actual transmission or a realistic possibility of transmission, consent is not vitiated."
The appeal panel's decision Thursday details the reasons for its Sept. 19, 2017, ruling it acknowledged was "unusual." That ruling quashed the charges after the Crown had conceded five days earlier that the judge had erred and Thompson should be acquitted.
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