Canada's Supreme Court: It's Not Always a Crime to Not Disclose HIV Status to Sex Partners
BY Diane Anderson-Minshall
October 05 2012 2:56 PM ET
Canada's highest court just ruled that it's not automatically a crime when people with HIV do not disclose their HIV status to their sexual partners, a ruling that is far more progressive than we've had in American courts. According to CTV News, the Supreme Court of Canada ruled it is not a crime for people with HIV to not disclose their HIV status if "they have a low level of the virus and wear a condom" and not a "realistic possibility" of transmission.
The decision was based on two Canadian legal cases (one in which a woman had been found guilty of aggravated assault for having sex with her even though her viral load was undetectable) and it clarified that because there have been significant advances in HIV management since a earlier ruling on disclosure. That 1988 ruling allowed that anyone who had not disclosed their HIV status to a sex partner could be charged with sexual assault or aggravated sexual assault.
"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 in the decision. "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."
The second case in the decision, in which Clato Mabior had been found guilty of four counts of aggravated sexual assault after he had sex with four women and didn’t use a condom, stood, according to CTV News. The move was baffling to advocates like Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Action Network, who told CTV News,“The court on the one hand is saying we’re not going to use the criminal law to criminalize every single risk, however small. But in effect, that is what they have done. Should we be using aggravated sexual assault — this is the law of rape — when we’re talking about a risk [of transmission from a man with a low viral load to a woman] that is somewhere in the order of one in 100,000?”
Go to CTVNews.ca to see video of Richard Elliott's reaction or hear host Mercedes Stephenson discuss both sides of opinions in the Supreme Court of Canada ruling on HIV disclosure.