The Supreme Court of Canada has just issued two rulings, one on an appeal from Quebec and the other on an appeal from Manitoba, which together clarify and restructure the circumstances under which criminal sanctions can be applied to an HIV+ person who has sex without disclosing that HIV status to his or her sexual partner.
Since 1998, Canadian law has held that those who fail to disclose their HIV status can be charged with sexual assault or aggravated sexual assault if their sexual relations pose "a significant risk of bodily harm" to their partners. Lower court holdings over the years have held that there was no significant risk of bodily harm where the accused used a condom, or where the accused had a low viral load due to medication. The new Supreme Court holdings agree that there is no significant risk, and no legal duty to disclose HIV status, where the accused's viral load is low due to medication, and a condom is used. But the Supreme Court upheld the convictions of defendants who did not use condoms, even if their viral loads were low.
The decisions have drawn immediate criticism from opposite sides. Advocates for persons with HIV/AIDS accuse the court of reinforcing irrational and unscientific fears of HIV transmission, of stigmatizing those who are infected, and of creating a world in which even responsible condom use offers no surefire protection from prosecution for those who do not disclose their HIV status. The threat of criminal prosecution for an act of consensual sex, they argue, doesn't protect people from HIV transmission. Conservative critics of the opinions lament the Court's having given legal permission for people not to disclose their HIV+ status to their sexual partners in some circumstances.
The Court also said that the "significant risk" necessary to underwrite criminal prosecution would vary with the sex-act in question, and could also change with medical progress.
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