BARRIE, Ont. -- A lawyer is arguing her client shouldn't be held in jail because she had sex with a man who was unaware she has the HIV virus.

"Her viral load is undetectable and she is not a risk to anyone," insists lawyer Angela McLeod, who says her client should not have been charged in the first place, now that HIV can be treated.

"Exactly this same type of case is being argued before the Supreme Court of Canada," said McLeod. "I am certain the outcome of that will show that Canada's laws are outdated."

Her client, Jennifer Murphy, 38, who is HIV-positive, has been behind bars since her September arrest when a police officer allegedly caught her with her pants down while with another man.

Days after she was charged police released her photograph, two other men came forward and Murphy was charged with three counts of aggravated assault.

Murphy is well-known to officers in the area after being convicted in 2005 and sentenced to house arrest for having unprotected sex with a CFB Borden soldier without telling him of her HIV-positive status.

In court, Murphy sat in the prisoner's box and appeared healthy as she smiled brightly at her lawyer.

The issue of whether or not people with HIV that is under control with medication should have a legal obligation to tell their sex partners of their status will be argued before the Supreme Court of Canada on Wednesday.

The Supreme Court ruled in 1998 that knowingly exposing a sexual partner to HIV is a crime. But lawyers will argue that developments in treatment and advances in the science of HIV shows that those who are being treated and have an undetectable viral load pose little or no risk of infecting others, even when they have sex without a condom.

Murphy contracted the virus from her boyfriend and he was charged with sexual assault.

She has been treated for HIV for the past 20 years.

Her lawyer says she is concerned that a final ruling from the high court may take several months and her client should not have to sit in jail all that time.

"My client is no more a risk than getting up in the morning and crossing the street," said McLeod.

Murphy will be back in court March 2 to set a date for trial.