R. v. Nduwayo (A.S.) 2012 BCCA 281
Criminal Law - Sexual offences - Rape or sexual assault - Consent and extorted consent
The accused, knowing that he carried the HIV virus, had unprotected sexual intercourse with five women without disclosing this fact. Two of the five contracted the HIV virus. The accused was convicted of five counts of aggravated sexual assault. The accused appealed two of the convictions: (1) respecting L.A., who did not contract HIV and (2) D.D., who did contract HIV. The accused argued (respecting the L.A. conviction) that the trial judge misapprehended material evidence respecting the reduced risk of HIV transmission where the accused had a low viral load and that the judge’s reasons respecting the impact of a low viral load on the risk of HIV transmission were insufficient. The accused argued (respecting the D.D. conviction) that the trial judge erred by taking into account the fact that D.D. contracted HIV in determining that the second aspect of fraud vitiating consent (deprivation) was met by actual harm or the risk of significant seriously bodily harm.
The British Columbia Court of Appeal dismissed the appeal.