Canadian Supreme Court Outlines When It's Legal for HIVers Not to Disclose Before Sex

On October 5 -- in what HIV/AIDS activists call "a partial victory" -- the Supreme Court of Canada ruled that people with low levels of HIV who use condoms during sex do not have a duty to disclose their condition to sexual partners. The court -- in a 9–0 ruling -- reasoned that the decision reflects medical advances in treating the virus that causes AIDS.

HIV/AIDs activists sought to overturn court's 1998 decision that held that people with HIV must divulge their condition to their sex partners or face a charge of aggravated sexual assault, a charge which can carry a maximum life sentence. The activists claimed that the 1998 ruling has been applied unevenly and created confusion.

The court did not denote in the new ruling what "acceptably low HIV levels" are, but noted that HIV's transmissibility is proportional to the level of HIV in a patient's bloodstream. Also, a patient's HIV levels shrink significantly when undergoing antiretroviral treatment.

The Supreme Court of Canada considered two separate cases where prosecutors argued that HIV carriers have a duty to inform their partners regardless of the risk, so partners can make an informed decision. The Supreme Court of Canada held that three convictions -- overturned on appeal -- in which an HIV-infected Manitoba man did not use a condom should be restored, but upheld the acquittal in which the defendant did use a condom. The Supreme Court upheld an HIV-infected Quebec woman's acquittal on appeal in a case where her HIV levels were undetectable during the period that the charges covered.

The Canadian HIV/AIDS Legal Network issued a statement that "In practice, today's ruling means that people risk being criminally prosecuted, even in cases where they exercised responsibility and took precautions, such as using condoms, which are 100 percent effective when used properly." The group warned that the decision "will seriously undermine public health."

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