Canada Says HIV Cases Not Criminal

In Toronto this week, infectious disease experts are battling the justice system. The experts want criminal prosecution for those who do not disclose HIV infection to sexual partners.

The Supreme Court of Canada, in 1998, ruled that HIV positive people must tell sexual partners about their HIV status or be charged with aggravated sexual assault with jail time of 14 years and the potential for a sex offender label. There have been more than 150 cases tried using this ruling. In some cases, the charges are filed years later when the information comes to light or the person who was not infected initially starts to have symptoms.

The ruling was updated when two separate cases of heterosexual encounters were considered. The Supreme Court changed their opinion to state that any individual with HIV does not have the legal obligation to disclose their condition if they have a low level of the virus and are on treatment and also use a condom.

The estimate by scientific experts is that 75% of cases involve heterosexual relationships. They also say that HIV positive people on appropriate levels of antiretroviral treatment have a low risk of transmitting the virus. Doctors have made efforts to educate those in the judicial system about the current state of HIV treatment and transmission.

The main argument about the legal necessity to inform a sexual partner is that heterosexual transmission is rare. The doctors state that the possibility of contracting HIV through saliva, through sex with a partner receiving treatment, and with someone using a condom is very low.

These scientists presented information to the Court because they felt that the justice system was being used inappropriately against HIV positive patients. The old system treated these people with the same penalties as those used for rapists. Doctors state that HIV is now a chronic and manageable disease rather than the death sentence it once was.

The criminal treatment also, in many cases, discouraged people from seeking HIV testing. By not having the test, they could claim that they did not know their HIV status and could not be charged. Unfortunately, this also meant that they did not receive treatment.

The one issue that will remain murky and will likely test the court is the one in which someone intentionally does not reveal their HIV status with the goal of deliberately infecting their partner. This should be addressed and defined as to the criminal implications and consequences.

The bottom line is that HIV status is not a criminal issue, it is a health issue. If you have HIV, be responsible and respectful by discussing your status with sexual partners, seek treatment and education, and always use a condom.

Engaging in sexual relations with a new partner or multiple partners carries the risk of HIV and other STDs. Practicing safe sex in all situations is advisable. If, in your lifestyle, you may be at risk, get tested. It is better to know and begin treatment than to remain ignorant – whether or not it is illegal.