CANADA: Supreme Court Rules Failure To Disclose HIV Is Not Always A Crime

The Supreme Court of Canada has ruled that the failure to disclose an HIV+ status is not a crime as long as the person has a low viral load and uses a condom. Prosecutors from two provinces had demanded that any failure to disclose should remain illegal.

The ruling still leaves open the possibility that charges could still be laid against those who are reckless and who fail to take steps to avoid transmitting the potentially fatal virus.  In deciding two cases -- one in Manitoba and one in Quebec -- the court clarified a ruling it made in 1998 on the issue of HIV disclosure. Under that ruling, those who failed to disclose their HIV status could be charged with sexual assault or aggravated sexual assault if there was "a significant risk of bodily harm." But the court said Friday there have been huge advances in HIV management since then. Those advances include antiretroviral medications that can keep levels of the virus so low, they are almost undetectable. The court said as long as the HIV carrier has a "low load" of the virus and wears a condom, they are not legally obligated to inform their sex partners of their status. It said convictions would be warranted only if there were "a realistic possibility" of transmission.

Both of the above-cited cases involved heterosexual encounters. The Canadian HIV/AIDS Legal Action Network says they are disappointed that the Court did not strike down HIV disclosure laws entirely. The group's leader said, "We can’t expect after-the-fact criminal prosecutions are going to protect people. People have to take a certain amount of personal responsibility here." (Tipped by JMG reader Mike)