HIV and the Law « Vancouver Island Persons Living with HIV/AIDS Society

Be Informed. Know Your Rights.

“I urge all countries to remove punitive laws, policies and practices that hamper the AIDS response… Successful AIDS responses do not punish people; they protect them… We must ensure that AIDS responses are based on evidence, not ideology, and reach those most in need and most affected.”

Ban Ki-moon, Secretary-General of the United Nations, 2009

With regularity, people living with HIV (PHAs) continue to be criminally prosecuted and convicted for not disclosing their HIV-positive status to sexual partners. As of April 2012, more than 130 people in Canada had been charged for not disclosing their status. Until the law is changed, criminalization is a reality that the community must live with and respond to.

The recent decisions by the Supreme Court of Canada on HIV disclosure were a major step backwards for human rights and for HIV treatment and prevention. When do you have a legal duty to disclose your HIV-positive status to a sexual partner?

The increasing number of criminal charges that are being laid each year in Canada, and in particular in Ontario, in cases of non-disclosure of HIV-positive status have raised alarm bells amongst people living with HIV (PHAs) as well as organizations working with and advocating for the rights of PHAs and others affected by HIV/AIDS. There is little, if any, evidence to suggest that criminal prosecutions for non-disclosure of HIV-positive status will offer any significant benefits in terms of HIV prevention. On the other hand, there is strong reason to believe that these criminal prosecutions could have negative effects, including hindering HIV testing and access to services, spreading misinformation about HIV, increasing stigma and discrimination associated with HIV, and invasions of privacy.

The Supreme Court of Canada says that you must disclose your status before having sex that poses “a realistic possibility of transmitting HIV.” But the Court also found that almost any risk is “realistic,” no matter how small.

Based on the Court’s decisions, you have a legal duty to disclose:

before having vaginal or anal sex without a condom (regardless of your viral load); or
before having vaginal or anal sex with anything higher than a “low” viral load (even if you use a condom).

In summary, either using a condom or having a low viral load is not enough to preclude criminal liability in cases of HIV non-disclosure when it comes to vaginal and anal sex.

When don’t you have a duty to disclose?

The Supreme Court of Canada was clear that you do not have a duty to disclose before having vaginal sex if (1) your viral load is low or undetectable and (2) you use a condom. Both of these are required.

NOTE: Your viral load does not need to be “undetectable.” A “low” viral load is sufficient. What this means remains to be defined in subsequent cases. However, based on the Supreme Court of Canada decisions, it seems that it should at least include any viral load below 1500 copies of the virus per millilitre of blood.

Read the Canadian HIV/AIDS Legal Networks Publication: HIV non-disclosure and the criminal law: Implications of recent Supreme Court of Canada decisions for people living with HIV

The Canadian HIV/AIDS Legal Network has assembled an excellent website filled with info sheets, backgrounders and videos regarding the social and legal impacts of the criminalization of HIV non-disclosure.

To access this information visit the Legal Network’s Website www.aidslaw.ca/stopcriminalization

HIV Testing Pocketbook: A Guide to Your Rights

BC Civil Liberties Association www.bccla.org has created this pocketbook that covers some of the topics that you need to know to understand your rights in regards to HIV testing in a new environment where the push is for “routine testing”.

It covers topics like informed consent, “non-nominal” (no name) testing, how to safeguard your medical privacy and limit who can view your medical information, and information about the criminal law and non-disclosure of HIV status to sexual partners.

HIV Testing Pocketbook: A Guide to Your Rights

HIV Testing & Your Rights Handbook (a more comprehensive resource)

Living with HIV: ‘We are not criminals’; Monday Magazine, Victoria, Published: October 17, 2012 2:00 PM

VPWAS members talk to Monday Magazine, about recent SCC ruling on HIV (non) Disclosure, and what that means to people living with HIV/AIDS

HIV and the Law

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