February 9, 2012
HIV treatment has not advanced enough that people with HIV/AIDS have no obligation to tell potential sex partners about their infection, the Supreme Court of Canada heard Wednesday.
"We're not there yet," Elizabeth Thomson, Crown attorney for Manitoba, told the nine justices. "The threat of HIV is not theoretical."
The Supreme Court is reviewing disclosure laws following cases in Quebec and Manitoba where two people with HIV were acquitted of criminal charges for not revealing their serostatus. A 1998 Supreme Court case ruled that those who hide their infection do not allow partners informed consent and expose them to "significant risk of serious bodily harm," even if no transmission occurs. As a result, people with HIV who do not disclose their serostatus can be criminally liable.
Advocates argue that the risk of transmission is significantly lower when a condom is used and the viral load is suppressed through treatment. The Crown in Manitoba, Quebec, and Alberta jointly asked the Supreme Court to make full disclosure mandatory, since HIV is incurable and potentially fatal.
The criminal law is meant to protect the uninfected public at large, even it means singling out people with HIV, said Caroline Fontaine, Quebec's Crown attorney. "An HIV-infected person's sex life cannot be like everyone else's," she said. Basing the law on "moving targets" such as viral loads would be "dangerous," she said.
The laws have made people with HIV hesitant to disclose their status due to unfair prosecutions and even dissuade some from testing, Jonathan Shime, of the Canadian HIV/AIDS Legal Network, told the court. The laws should only apply when transmission or recklessness can be proven, he said.