HIV Status and consent to sex – Canadian Supreme Court Rules (BMJ)

Canada has earned a reputation as a nation with a high rate of
criminal prosecutions of people with HIV who fail to disclose their
HIV positive status to sexual partners. On 5 October the Canadian
Supreme Court announced new appeals judgments that will continue to
allow the criminalisation of non-disclosure of HIV status.

A coalition of HIV and AIDS advocacy groups in Canada quickly
condemned the Supreme Court’s judgments as “unjust,” a “major step
backwards for public health and human rights,” and “a cold endorsement
of AIDS-phobia.”1

Canada has no specific law requiring someone who has tested positive
for HIV to reveal their condition to sexual partners. However,
prosecution lawyers have successfully used various existing offences
in the Criminal Code, including aggravated assault, aggravated sexual
assault, and even murder, to bring criminal charges against men and
women with HIV who failed to disclose their status to their sexual
partners.

More than 130 people in Canada with HIV have faced serious criminal
charges, including in cases where there was no transmission or even a
significant risk of transmission.2

In the past 14 years Canadian prosecution lawyers have often cited a
1998 ruling (R v Cuerrier) by the Supreme Court.3 This, the highest
court’s first ruling on the issue, established that a person’s failure
to disclose their HIV status before sexual activity may constitute
“fraud” under section 265 of the Criminal Code. The court explained
that this fraud rendered a sexual partner’s consent to sexual activity
legally invalid; thus what would otherwise have been considered
consensual sex became an “assault” under Canadian criminal law.

The court added that as HIV posed “a significant risk of serious
bodily harm,” the operative criminal charge for non-disclosure should
be “aggravated sexual assault.”

The 5 October appeal judgments relate to two separate cases, from
Manitoba and Quebec,4 5 in which criminal convictions for the offence
of aggravated sexual assault had been challenged and been overturned
by the appeal courts in both instances. The Supreme Court upheld its
1998 ruling and emphasised that HIV continues to be a life threatening
condition. It advised that prosecution remains appropriate if there is
“a realistic possibility” that HIV will be transmitted.

It said, “Although it can be controlled by medication, HIV remains an
incurably chronic infection that, if untreated, can result in death.
As such, the failure to advise a sexual partner of one’s HIV status
may lead to a conviction of aggravated sexual assault, which carries a
maximum penalty of life in prison.”

However, the court’s nine judges also ruled unanimously that an
exception could be made when both of two conditions were met. An HIV
positive person did not have to disclose their status if they had a
low viral count (after antiretroviral treatment) and they used condom
protection.

The coalition of advocacy groups, which includes the Canadian AIDS
Society and the Canadian HIV/AIDS Legal Network, feared that people
with HIV could be criminally prosecuted and convicted for
non-disclosure even in situations where the risk of transmission of
the virus was negligible.

The coalition also stated that the court’s judgments of 5 October
“will stand as an impediment to public health and prevention and add
even more fuel to stigma, misinformation and fear. And they place
Canada once again in shameful opposition to standards set out by
international human rights bodies, UNAIDS and the Global Commission on
HIV and the Law.”
Canada’s Supreme Court ruling on HIV disclosure is unjust, say HIV
advocacy groups
BMJ 2012; 345 doi: http://dx.doi.org/10.1136/bmj.e6929 (Published 19
October 2012)
Cite this as: BMJ 2012;345:e6929
Barbara Kermode-Scott