People living with HIV in Canada can be – and are –charged, prosecuted, and jailed for failing to disclose their HIV status before having sex with another person – if it is determined that there was a “realistic” possibility of HIV transmission.
The determination as to whether or not there was a “realistic” possibility of transmission can differ depending on the person(s) responsible for making that determination as well as the circumstances in question (ie. what type of sex has been had, what the viral load of the HIV-positive partner was, and whether or not a condom was used).
Charges can be brought regardless of whether or not there was intent to transmit the virus, in addition to whether or not HIV transmission actually occurred.
Application of the law varies from case to case but the most common charge levied against HIV-positive people in these circumstances is aggravated sexual assault. The rationale for this is as follows:
Sexual contact without consent is sexual assault.
Consent is invalidated if a person fails to disclose something that would have changed their sexual partner’s decision to consent – such as one’s positive HIV status.
If it is determined that the individual would not have consented to sex if they were aware of the partner’s positive HIV status, then consent would be invalidated, leading to a potential charge of sexual assault. And since the courts have historically considered HIV to pose risk of significant bodily harm or endangering someone’s life, the charge often applied is aggravated sexual assault.
This might seem contrary to some of the other information provided on this site. After all, when we diagnose and treat people living with HIV, helping them attain an undetectable viral load, we now know that they WILL NOT transmit HIV sexually to their partners. Additionally, there is no evidence that demonstrates that HIV criminalization helps decrease HIV transmission. In fact, the general consensus is that HIV criminalization de-incentivizes testing as people are discouraged from learning their HIV status due to possible legal consequences. And with less people tested, that means less people diagnosed, less on treatment, and less undetectable.
However, regardless of scientific advances or evidence against the effectiveness of HIV criminalization, the law remains unchanged. As per a 2012 Supreme Court decision, people living with HIV would need to disclose their HIV status unless a condom is used AND the person has a low viral load (1,500 copies or less). Additionally, this decision was made within the context of vaginal sex. Therefore, we can make some assumptions as to its possible bearing on oral sex, anal sex, and other forms of genital sex but decision did not explicitly address these types of sex and, therefore, we cannot say for certain that using a condom and having a low viral load is sufficient to not disclose ones HIV status before engaging in other types of sex.
Although the law remains the law, there have been some promising advances related to the over criminalization of HIV in Canada. These culminated in the Federal Justice Minister’s recent directive concerning prosecution of HIV non-disclosure cases, which, in essence, states:
- There should be no prosecution where the person living with HIV has maintained a suppressed viral load (i.e. under 200 copies of the virus per millilitre of blood) because there is no realistic possibility of transmission.
- There should be no prosecution in cases where the person has not maintained a suppressed viral load, but used condoms or engaged only in oral sex or was taking treatment as prescribed, unless other risk factors are present
- Non-sexual criminal offences would be more appropriate than sexual offences as this would better align with the individual’s situation, such as cases where the individual’s conduct was less blameworthy.
- If a person living with HIV has sought or received services from public health authorities, that must be considered when in determining whether it is in the public interest to pursue criminal charges.
- The criminal law will continue to apply to persons living with HIV if they do not disclose, or misrepresent, their HIV status before sexual activity that poses a realistic possibility of HIV transmission.
Though this marks a significant advance in the fight against over criminalization of HIV, there are some limitations to its impact. Primarily, the immediate application of the directives impact Nunavut, the Northwest Territories, and the Yukon, because the territories fall within federal jurisdiction. This means that the directive won’t apply in Alberta, or other provinces for that matter, until the provincial attorney-general adopts it. Although one would expect that the provincial government follow suit on adopting a similar directive, there is no guarantee at this point. Therefore, while we hope people living with HIV in Alberta take comfort in the fact that governments are gradually shifting their response to cases of HIV non-disclosure to be more reflective of the science, until we receive concrete confirmation from the provincial Justice Minister that Alberta intends to adopt the directive, people should remain cautious and aware of the legal precedent described earlier.
Recognizing some of the limitations of this decision, people living with HIV, legal experts, and others in the HIV sector across the country continue to press on to combat the over criminalization of HIV. To learn more about this work, visit the Canadian Coalition to Reform HIV Criminalization.