February 8, 2012

Is it a criminal act to knowingly infect someone with HIV? According to Canadian law, this is considered assault, for the obvious impact it has on victims.

But what about the mere act of having sex without disclosing your HIV-positive status to your partner? Is that the same as assault? A Supreme Court ruling in 1998 said that non-disclosure before engaging in any activity that poses a "serious risk" of transmitting the virus is still considered an assault subject to criminal prosecution.

The term "serious risk", however, is the subject of some debate, especially with medical developments that have severely reduced the likelihood of transmission from HIV-positive sexual partners undergoing treatment - never mind those who also wear a condom. Should a person taking those measures still face possible jail time for not laying out the full details of their medical condition every time they have sex?

These are questions that are before the Supreme Court once again today, when justices will hear appeals from Quebec and Manitoba.

In the first case, an HIV-positive woman failed to disclose her illness to a partner before sleeping with him the first time. She then informed him of her condition, and the pair stayed together for the next four years. They separated after the woman accused her partner of domestic violence; he then went to police to complain of her initial failure to disclose her illness. She was charged with aggravated assault, but the conviction was overturned, because of the low risk of transmission. (Her partner had not become infected.) Now, provincial prosecutors are taking the case to the Supreme Court, declaring that, risk or no risk, her initial non-disclosure still constituted an assault.

In the other case, a Winnipeg man was sentenced to 14 years in prison for failing to tell multiple partners that he was HIV-positive. The Manitoba Court of Appeal overturned four of those convictions because of the low risk of transmission involved - the man was undergoing anti-retroviral treatment at the time of his encounters and often used a condom. None of his partners have tested positive for HIV.

The question before the Court will be to consider whether there is an affirmative obligation to inform a partner of infection and if risk levels should be a factor in that determination.

One view on this is summed up in an opinion piece in today's National Post by Matt Gurney:

"The issue is not really about how likely someone is to become infected with HIV, or any other serious sexually transmitted disease or infection. It's about who gets to make the decision to expose someone else to that chance of infection, whether it be 100% or 1%. How severe the risk is is irrelevant -- each of us should have the right, and expectation, to know what we are getting ourselves into. None of us should have the right to decide for someone else whether they are exposed to a potentially deadly disease. The only person qualified to make that kind of decision is the person accepting the risk. If they are denied the opportunity, they have not consented. That's a crime."

On the other hand, a focus on criminalization can help stigmatize even further those living with HIV, and possibly make them less willing to disclose their illness to anyone, including sexual partners.

According to a statement by the HIV/AIDS Legal Network, criminalization "contributes to a climate of anxiety, fear, stigma and misinformation that undermines HIV counseling, education and prevention efforts -- and puts all Canadians at greater risk."

"People living with HIV are not criminals in cases where the threshold of significant risk is not met -- including cases where condoms are used or an HIV-positive person is being successfully treated with antiretroviral drugs. We envision a world where the law seeks to protect and uphold the human rights of all people, including those living with HIV, and is guided by the best available scientific evidence, not assumptions, prejudice or fear."

What do you think? Should someone infected with HIV be subject to criminal prosecution for failing to tell potential sexual partners about their condition - even if they are on treatment and using a condom? Or does that unnecessarily stigmatize those living with HIV? And what about the right of those prospective partners to determine the risk for themselves, regardless of what preventative measures are involved?

Let us know in the comments section below, or by replying to this post on our Facebook page, at facebook.com/strombo.

Related Stories on Strombo.com:

Birth-Control Pill Recall Could Leave Many At Risk Of Unwanted Pregnancy

Gay Men Allowed to Give Blood in the UK - But Not Yet in Canada

Links:

CBC Manitoba

Xtra!

The Globe and Mail

National Post

HIV/AIDS Legal Clinic Ontario

Canadian HIV/AIDS Legal Network