A Chilliwack man is set to be sentenced this fall after he was convicted of repeatedly having sex with a woman while he was HIV-positive and not informing her.
Steven Stewart Gauther was supposed to be sentenced in BC Supreme Court on June 12 but the matter was adjourned by defence until Sept. 25.
Gauthier was convicted on Feb. 5, 2020 by Justice Martha Devlin in New Westminster of one count of aggravated sexual assault under section 273 of the Criminal Code. Aggravated sexual assault is defined as sexual assault that “wounds, maims, disfigures or endangers the life of the complainant.”
Consensual sex with a person who does not disclose their HIV status meets the test of endangering the life of the complainant, and the consent is vitiated – rendered legally invalid – because of the non-disclosure.
The now 58-year-old Gauthier was in a relationship with R.G., the complainant who cannot be named due to a publication ban. Starting in late summer 2016, the two began engaging in sexual activity, according to evidence presented in BC Supreme Court in New Westminster by Crown counsel John Lester.
R.G. tested positive for HIV while in an institution after she was certified under the Mental Health Act in late January 2017 for about a month.
Gauthier was also alleged to have been “physical” with R.G. amd the sex got rougher and rougher leading to charges of sexual assault and assault, but he was acquitted of those charges because of the credibility of the complainant’s testimony due to her mental state.
Gauthier argued that R.G. was aware of his HIV status, but he was not deemed credible, at least in part because when the victim found out she too was HIV positive, she thought it was a death sentence.
Lester said, and the court accepted, that this was not the response of someone who was consensually having sex with an HIV-positive person.
Contracting HIV in such a case is not even necessary for a conviction of aggravated sexual assault, rather a “realistic possibility” of transmission is enough.
An oft-cited case of R v Mabior from the Supreme Court of Canada involved a man who had sex with nine complainants while HIV positive and while failing to disclose. In convicting Mabior, the court revisited a test from a 1989 decision, R v Cuerrier that found “A person may be found guilty of aggravated sexual assault under sec. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted.”
Gauthier was in the news already this year as the owner of a dog accused of attacking multiple people in the Columbia Valley.
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