February 6, 2012
Canada's Supreme Court on Wednesday will hear two cases regarding whether it is a crime for people with HIV to not tell their sexual partners about the infection when the risk of transmission is low. A 1998 ruling on the issue has been interpreted differently by judges across Canada.
In the first case, the Manitoba Court of Appeal overturned four convictions tied to one man's failure to disclose his infection to sex partners. The court noted that some sex partners lacked exposure to "significant risk." The man was on antiretroviral therapy and used condoms in some encounters, and none of his partners tested HIV-positive, the court said.
Nevertheless, each uninfected sex partner was exposed to the chance of infection, the province is arguing before the Supreme Court. "It does not matter that the chance of this occurring is small, the law aims to stop people from taking that chance," the province said. "The choice whether to assume this risk must ... lie with the person assuming the risk, not the person imposing it," it added.
Prosecutors are making similar arguments for the second case, which was overturned by Quebec's Court of Appeal on grounds that the odds of HIV transmission at the time were low.
A sweeping responsibility for disclosure would unfairly strip those infected of their right to privacy, say lawyers for the two defendants with HIV. In addition, it could discourage people from testing and seeking treatment, endangering those with HIV as well as the public. Condom use and low viral loads should factor into the law, which should reflect more clearly what constitutes "significant risk," they argue. "We submit that only the actual intentional transmission of the virus should be criminalized, as in most of the Commonwealth countries," they say.