On October 5th, 2012 the Supreme Court of Canada (SCC) released a judgment regarding the criminality of HIV non-disclosure to sexual partners. Since its 1998 ruling in the Henry Gerard Cuerrier case, the onus has been on persons living with HIV to disclose their HIV+ status to sexual partners where there was a ‘significant risk of bodily harm’. The charge most often pursued when a complainant came forward was that of either sexual assault or aggravated sexual assault under the Criminal Code of Canada. These are extremely serious charges and can lead to life in prison. The legal test of whether or not sexual relations between people posed a ‘significant risk of bodily harm’ had become interpreted and applied differently in each of over 130 cases prosecuted before Canadian courts. The result was significant differences of opinion between lawyers, judges, doctors, and those living with HIV about what constituted a ‘significant risk of bodily harm’. Some of the prosecutions ended in guilty verdicts while others saw verdicts of not guilty being delivered.
During the 14 years since Cuerrier science and medicine have revolutionized the treatment for HIV to such an extent that a person can have a ‘low’ or even ‘undetectable’ viral load. Although the HIV is still in the body, the amount of the virus is tremendously diminished, which logically implies that so too is the significant risk of transmission. The HIV is still present, but can be so in a much reduced amount if anti-retroviral treatment is ongoing. The SCC’s ruling has taken into consideration this advancement of science and medicine.
The Supreme Court of Canada concluded in its decision:
…………”that the Cuerrier requirement of ‘significant risk of serious bodily harm’ should be read as requiring disclosure of HIV status if there is a ‘realistic possibility of transmission of HIV.’ If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relations under [Criminal Code of Canada] s.265(3)(c).”
The highest Court in the land goes on to state that “a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low, AND (author’s emphasis) (ii) condom protection was used.” This decision has inspired many to weigh in with their opinion. Some are not supportive (Canadian HIV/AIDS Legal Network) and some are supportive, as is the community member’s opinion that follows:
Contrary to many people’s disagreeing responses, I happen to like the Supreme Court of Canada’s ruling. First, the Court has recognized that the ‘significant risk of bodily harm’ cannot mean any risk, however small. Second, the values of autonomy and equality enshrined in the Canadian Charter of Rights and Freedoms support respecting the interest of a person to choose whether to consent to sex with a particular person or not. Third, I believe the decision will encourage citizens to seek testing for HIV. I am convinced that prior to this ruling, people intentionally did not get an HIV test fearing it would be positive and they would be legally compelled to disclose their HIV+ status to sexual partners. Now, I believe more people will get HIV testing and if a positive result ensues, then they will seriously discuss with their doctor whether or not to begin medications. Regular medical check-ups will monitor viral load which, with medications, can be ‘low’ and likely ‘undetectable’. Someone who knows their status, their viral load is low, and uses condoms consistently will know that the law’s view is clear: there is no ‘realistic possibility of transmission of HIV.’ I see the decision helping all persons living with HIV in Canada feel equal before the law, despite what others might think.
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