HIV+ Status and Attempted Murder
If a person consents to
sexual activity knowing their sexual partner is HIV positive, that consent is an answer
to any criminal charge in respect of which the Crown must prove the absence of
consent. Those charges would include assault, sexual assault, aggravated
assault, and aggravated sexual assault.
However, there are many
such offences, including attempted murder, that do not require proof of the
absence of consent.
Anyone who intends to
kill someone else and does something beyond preparation to bring that result
about, is not morally blameless, but rather a would-be murder who is properly
accountable under the criminal law. A
complainant’s consent to have sex with a person he knows is HIV positive does
not negate or vitiate any essential element of the offence of attempted murder.
It is very unlikely, however,
that a court could find that an HIV+ accused who had sex with another person had
the specific intent to kill (which is required for the offence of attempted
murder), as intent to kill requires a finding beyond a reasonable doubt
that either:
1. the accused’s purpose was
to kill another (either as an end in itself or as a means to achieving some
further end), or
2. the accused decided to
commit an act believing, to a virtual certainty, that the act will cause the
death of another.
R.
v. Boone, 2019 ONCA 652
Written by Stuart
O’Connell, O'Connell Law Group.
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