Can a condom protect HIV sufferers from the law?

Adrien Nduwayo has been found guilty of charges including aggravated sexual assault because he had unprotected sex with several women without revealing he had HIV.

You're breaking the law if you are HIV-positive and you have unprotected sex without telling your partner, according to a precedent-setting 1999 Supreme Court of Canada decision. But what if you're HIV-positive and you don't tell your partner - but you do use a condom?

A B.C. Supreme Court jury last night could have found itself debating the potentially significant legal precedent, but instead avoided the issue by ruling that Adrien Nduwayo intentionally spread HIV through unprotected sex.

Nduwayo, 36, looked on with little emotion as the jury's verdict was revealed: guilty on six counts on aggravated sexual assault, guilty on attempted aggravated sexual assault, guilty on sexual assault.

In a surprise move, Justice John Truscott had earlier instructed the jury that while Nduwayo was legally bound to disclose his HIV-status if he had unprotected sex (as per the 1999 Supreme Court ruling), there was "no legal duty" to disclose his HIV if he used condoms. Nduwayo told the court last week he always used condoms. His victims, in sometimes disturbing testimony, insisted otherwise.

The argument goes that by using a condom, the risk to the alleged victim is lowered. Nduwayo defence lawyer Paul McMurray explains:

"By using a condom, the substantial risk of serious harm [that constitutes an aggravated assault charge] is not there because the risk is reduced to a very low level," McMurray said before last night's verdict was reached.

It's an issue of whether or not we're prepared to isolate HIV sufferers to the point where they cannot have any intimate contact whatsoever

But while condoms provide a medically-accepted degree of protection against HIV, they are not 100 per cent foolproof.

And of course, not all forms of sexual protection, or even condoms, are equal.

Surely, for example, using two condoms will lower the chances of infection. If that's true, then certainly using two condoms as well as a female condom will lower infection rates even further. By comparison, a single condom may seem relatively unsafe.

At what point does the law draw the line to indicate that an HIV-infected person has done enough to protect his or her partner so that the act of sex will not be a crime?

"That's a question that parliament ultimately has to decide," McMurray said, adding that the country could potentially be instituting "modern day leprosy" if parliament should decide to set that line too high.

"It's an issue of whether or not we're prepared to isolate HIV sufferers to the point where they cannot have any intimate contact whatsoever," McMurray said.

But in the end, that's not what Adrien Nduwayo's trial ended up being about. That precedent will be for another trial to debate, says Crown prosecutor Andrew MacDonald.

"It's something that still needs to be tested," MacDonald said after last night's verdict. "I suspect it is something that will be visited at some point in time."

What Nduwayo's verdict did do, however, was reaffirm the landmark 1999 Supreme Court ruling.

"When you're HIV-positive, you have a positive duty to disclose that fact to any prospective sexual partners that you may have," MacDonald said.

But Nduwayo didn't tell his partners he had HIV, seven of whom were complainants in his case.

According to testimony over the three-week trial, Nduwayo, a soccer coach and refugee originally from Burundi, juggled relationships with multiple women. Four who testified, three of them complainants, would test positive for HIV after having unprotected sex with Nduwayo.

What Nduwayo did may be morally wrong. It may be reprehensible. But it's not criminal

One witness revealed how she discovered Nduwayo was cheating on her with another woman when she called Nduwayo's house, only to speak with his other girlfriend. The two would later go for coffee.

"I was under the understanding that I was his only girlfriend and she was under the understanding that she was his only girlfriend," the witness said. "So we obviously had a lot to talk about."

The witness, who now has HIV, testified the virus has wreaked havoc on her eyesight, muscle mass, and even her teeth, which are brittle to the point of breaking. But she isn't named as a complainant because she can't prove Nduwayo knew he had HIV before he had sex with her.

Another witness, also HIV-positive, testified she was a virgin until she met Nduwayo. "Adrien was very manipulative and coercive," the witness said on stand. "... I guess you could say he forced me into it."

Another testified she only had sex with Nduwayo about four times. The condom broke on one occasion however, and the couple had consensual unprotected sex on another occasion. She would later be told she had seven years to live after testing positive for HIV.

But when Nduwayo took the stand, he disputed much of his complainants' testimony, and he insisted he always used condoms.

Defence lawyer McMurray appealed to the jury in his closing arguments.

"What [Nduwayo] did may be morally wrong. It may be reprehensible. But it's not criminal," McMurray said. "As much as you may dislike him for his conduct, the evidence doesn't establish that Adrien Nduwayo is guilty of any crime."

Lawyers will discuss a date for sentencing on Friday.

Tags: hiv, aids