Supreme Court: Failure to disclose HIV to sex partners not always a crime

Published: October 5, 2012

The Supreme Court of Canada has ruled it is not always a crime for people with HIV to not disclose their HIV status to their sex partners — as long as they have a low level of the virus and wear a condom.

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.

"On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used," Chief Justice Beverley McLachlin wrote on behalf of the court.

The court left open the possibility of further refinements to the law in the future.

"However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play."

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