A charge has been stayed against a Yellowknife man after he was accused of sexually assaulting a woman by failing to disclose his HIV-positive status.
Bobby Kaotalok, 33, was charged with aggravated sexual assault – a charge that can be applied in HIV non-disclosure cases – late last year.
HIV stands for human immunodeficiency virus, a virus that, if untreated, can lead to AIDS.
The Supreme Court of Canada ruled in 2012 that a person must disclose his or her HIV positive status “before sexual activity that poses a realistic possibility of transmission, so that the HIV negative sexual partner has the opportunity to choose whether to assume the risk of being infected with HIV,” according to the federal government’s website.
When Kaotalok appeared in NWT territorial court to answer to the lone charge in mid-December, Crown prosecutors noted that, due to new federal directions under the Public Prosecution of Canada related to the prosecution of HIV non-disclosure cases, Kaotalok’s charge may not move forward.
In an effort to recognize and curb the negative impact of the “over-criminalization” of HIV non-disclosure cases, which could dissuade others from pursuing testing and treatment, the new guidelines, issued by former federal Minister of Justice Jody Wilson-Raybould, directs Crowns attorneys not to prosecute if the HIV-positive person maintains a “suppressed viral load (i.e. under 200 copies of the virus per millilitre of blood) because there is no realistic possibility of transmission,” according to the Government of Canada’s website.
The new directive states that there should not be prosecution where the person living with HIV has maintained a suppressed viral load (i.e. under 200 copies of the virus per millilitre of blood) because there is no realistic possibility of transmission.
Crown attorneys are advised, under the directive to “generally not prosecute where the person has not maintained a suppressed viral load but used condoms or engaged only in oral sex or was taking treatment as prescribed unless other risk factors are present, because there is likely no realistic possibility of transmission in such cases.”
Prosecutors must now also consider whether a person living with HIV has “sought or received services from public health authorities, in order to determine whether it is in the public interest to pursue criminal charges.”
Those directives, according to prosecutor Alex Godfrey, played a role in Kaotalok’s charge ultimately being stayed. In December, Kaotalok’s matter was adjourned in order for the Crown to receive medical reports related to the accused.
“Reviewing those medical reports in light of the new directive – that’s what led us to stay the charge,” Godfrey told Yellowknifer Tuesday.
Due to privacy concerns, Godfrey couldn’t say specifically what was in the medical report that led to the charge being stayed.
Kaotalok received a three-and-a-half-year sentence in 2013 after pleading guilty to two counts of the same offence, aggravated sexual assault.
The federal government says it will continue to prosecute people living with HIV who fail “to disclose, or misrepresent their HIV status before sexual activity that poses a realistic possibility of HIV transmission.