Consent is Neither Implied Nor Retroactive: R v Wilcox

In R v Wilcox, 2014 SCC 75, a paragraph-long oral judgment of the Supreme Court affirms the judgment of Quebec’s Court of Appeal, 2014 QCCA 321. In that decision, the majority of the Court of Appeal upheld a trial decision that found James Steven Wilcox guilty of aggravated sexual assault. The charge stemmed from Wilcox’s failure to disclose his HIV-positive status to a new partner before the two engaged in two episodes unprotected sex, first at a men’s sauna and then at Wilcox’s apartment.

In determining whether the Crown had proven that the complainant would not have consented to such risky sexual activity if disclosure had been made, the Court of Appeal was divided on how to weigh the complainant’s consent to unprotected sex with Wilcox after learning of the latter’s HIV status. By assigning limited weight to this factor relative to other considerations, the Court of Appeal majority’s decision stands to have a double-edged effect: empowering future complainants to speak authoritatively on their consent to any specific sexual act while also opening the door for defendants to challenge complainants’ credibility based on their risky health-related behaviours.

The Facts

Wilcox, an HIV-positive man carrying a high viral load during the incidents that precipitated charges against him, often visited Montreal to seek sexual partners at male-only saunas. Criminal charges against Wilcox arose from two incidents of unprotected sex between Wilcox and a partner he first met at a sauna and later dated. Wilcox did not disclose his HIV status before the partners engaged in unprotected sex at the spa, or prior to their first sexual encounter after that.

Wilcox did eventually disclose his HIV status to his partner and, shortly thereafter, the partner had himself tested and found HIV-negative. Months later, however, Wilcox’s partner was tested again and found HIV-positive. At trial, the ex-partners gave differing accounts on whether they continued to have unprotected sex following Wilcox’s disclosure.

Aggravated Sexual Assault Arising from Undisclosed HIV Infection

Following the Supreme Court’s decision in R v Cuerrier, [1998] 2 SCR 371 [Cuerrier], aggravated sexual assault occurs where an individual infected with HIV fails to disclose this HIV status to a partner prior to engaging in sexual acts that expose the partner to a “significant risk of serious bodily harm.” According to the Supreme Court in R v Mabior, [2012] 2 SCR 584, the requisite risk of harm only exists if the infected individual engages in unprotected sex while carrying a high viral load. Under such circumstances, the failure to disclose one’s HIV status vitiates a sexual partner’s consent because that partner is denied the opportunity to knowledgeably consent to the heightened risk that is inherent in the particular act of unprotected sex.

The Trial Decision 

Wilcox was convicted at trial, 2011 QCCQ 11007, after Justice Louis A Legault determined that the complainant would not have consented to the dangerous act of unprotected sex if Wilcox had fully disclosed his HIV status at the outset of their relationship. The admitted facts in Wilcox’s case left little doubt about the “significant risk of serious bodily harm” arising from Wilcox’s high viral load, or the vitiation of consent arising from Wilcox’s lack of disclosure prior to engaging in unprotected sex with the complainant.

What remained contentious was whether the complainant would have consented to unprotected sex with Wilcox even if the latter had fully disclosed his HIV-positive status prior to their first episode of intercourse. According to the majority of the Supreme Court in Cuerrier, the Crown must establish the complainant’s unwillingness to consent to such unprotected sex beyond a reasonable doubt in order to sustain the charge of aggravated sexual assault. In addressing this key issue, Wilcox and the complainant gave significantly different accounts of their relationship following Wilcox’s disclosure.

According to Wilcox, the complainant showed empathy and understanding when Wilcox disclosed his HIV status. Wilcox further testified that complainant remained his dating partner and consented to numerous acts of unprotected sex following Wilcox’s disclosure. According to the complainant, Wilcox’s disclosure was a shocking experience that ended the romantic relationship. Accordingly, the complainant testified that he and Wilcox did not continue to engage unprotected sex following the disclosure.

As finder of fact, the trial judge expressed doubts about the truth of the complainant’s account but nevertheless found the evidence sufficient to conclude, beyond a reasonable doubt, that the complainant would not have consented to either initial act of unprotected sex with Wilcox if the latter had openly disclosed his HIV status.

The Court of Appeal Majority

The majority of Quebec’s Court of Appeal upheld the trial judge’s decision, finding that the evidence sufficed to justify the finding of guilt despite limitations in the clarity of the decision.

The Court of Appeal unanimously disposed of most of Wilcox’s grounds of appeal. Addressing one issue in particular, the Court of Appeal affirmed the trial judge’s rejection of a defence witness who claimed to be an expert in the culture of Montreal men’s saunas, and the implicit consent to dangerous sexual acts that is involved in attending such saunas. Following R v Ewanchuk, [1999] 1 SCR 330 [Ewanchuk], the Court of Appeal confirmed that implicit consent never constitutes a valid defence against a charge of sexual assault. The Court of Appeal also favoured the exclusion of this witness because such expertise amounted to generalizations about the behaviors of a particular group of people.

While the Court of Appeal also unanimously cast doubt on the credibility of the complainant’s claim that he no longer engaged in unprotected sex with Wilcox after the latter’s disclosure, only the majority concluded that this did not suffice to cast a reasonable doubt on the complainant’s unwillingness to consent to his initial acts of unprotected sex with Wilcox. According to the majority, “the situation is different once a person has been exposed and possibly contaminated” and it remained open for the trial judge to find that the complainant would not have consented to the pre-disclosure unprotected sex even if he had consented to post-disclosure unprotected sex.

In addition to considering the complainant’s consent to post-disclosure unprotected sex, the majority favoured an approach that considered additional factors and focused on the complainant’s evident concern over his health during the time of Wilcox’s disclosure. The complainant’s proactive efforts to visit a hospital and have himself tested for HIV sufficed to support the finding that he valued his health and therefore would not have consented to unprotected sex with Wilcox if the latter had disclosed his HIV status at the outset of their relationship.

The Court of Appeal Dissent

Writing in dissent, Justice Hilton found that the trial judge failed to apply the test in R v W(D), [1991] 1 SCR 742, to determine whether the sum of Wilcox’s evidence sufficed to raise a reasonable doubt of the complainant’s unwillingness to consent to pre-disclosure unprotected sex. Unlike the majority, Justice Hilton concluded that the complainant’s consent to post-disclosure unprotected sex sufficed to raise a reasonable doubt about his unwillingness to consent to the pre-disclosure unprotected sex.

No Implicit Consent Affirmed

The unanimous portions of the Court of Appeal’s judgment affirm that the principles established more than a decade ago in Ewanchuk remain firm, and are not subject to exceptions for particular communities or subcultures. Even when an accusation of sexual assault arises from sex in circumstances where parties commonly accept sexual risk — consent will continue to be examined on a case-by-case basis and will never be implied on a complainant’s behalf.

No Retroactive Consent

There is a double-edged implication for future complainants in the Court of Appeal majority’s finding that post-disclosure consent does not, in itself, necessarily cast reasonable doubt on the absence of pre-disclosure consent.

On the one hand, this finding recognizes complainants as the authorities on their own consent to any specific sex act. Applying the majority’s rationale for refusing to grant determinative weight to the complaint’s post-disclosure consent to risky sex acts, courts in the the future may similarly attribute less weight to evidence of complainants’ history of engaging in risky sexual behaviours prior to an alleged sex assault. Such an approach would grant greater weight to the voices of complainants in sexual assault cases.

On the other hand, the Court of Appeal’s reliance on evidence of the complainant’s proactive concerns for his health may open the door to more broad and intrusive cross-examination of future complainants where cases pivot on the issue of consent. As the complainant in Wilcox had his unwillingness to consent upheld on the basis of steps he took to protect his health, future complainants may have their unwillingness to consent challenged based on failures to take similar proactive actions or even based on other risky health-related behaviours.

On the whole, the majority’s decision therefore gives voice to complainants with one hand while taking it away with the other – providing a basis for granting less weight to risky sexual behaviours while granting more weight to risky health-related behaviours in the determination of a complainant’s unwillingness to consent to unprotected sex with a person who is infected with HIV.