On Feb. 8, the Supreme Court of Canada will hear two appeals about when a person living with HIV may be criminally prosecuted for not disclosing his or her status to a sexual partner. Such prosecutions continue to generate fear and stigmatization, directly affecting the lives of some of the most vulnerable in our communities and undermining broader efforts for HIV prevention and care.
When the court first addressed this issue in 1998, it ruled that HIV-positive status must be disclosed to sexual partners before engaging in activities that pose a “significant risk” of transmitting the virus, or else they could face charges of aggravated (sexual) assault. But fuelled by an exaggerated sense of HIV risk, people living with HIV have faced some of the most serious charges in our Criminal Code, even where there was no transmission or a significant risk of transmission.
Indeed, in at least one of the cases now under appeal, the prosecution wants to do away with this significant risk benchmark, opening the door for a radical and unwarranted expansion of the criminal law. This extremist position would disregard the greater scientific knowledge we now have about just how low the risks of HIV transmission are – including in cases where people use condoms or have a low level of the virus because of effective medications.
Undeniably, there will be cases that deserve censure. A person who maliciously transmits HIV should face legal consequences. But this is a rare case. Many real-life sexual encounters are much less clear-cut – sex is complex and so is disclosing you have HIV. The bluntness and severity of the criminal law make it all the more important to draw reasonable lines between criminal and non-criminal sexual behaviour.
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