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Updated -- Canada's Supreme Court Redefines Risk

By Janet Madsen

October 5, 2012

This article was provided by Positive Women's Network BC.

Updated -- Canada's Supreme Court Redefines Risk

UPDATE -- -- scroll to the bottom for some links to media coverage on the decision

This morning the Supreme Court of Canada released their decision on two cases about HIV disclosure and criminal law that will influence criminal cases in the future.

(Big breath) Wow.

Now I should preface this post by saying I'm not a lawyer, so you can't count on this as legal advice. The Canadian HIV/AIDS Legal Network provides information about the law, but even they will direct you to a lawyer if you have questions about your own circumstances.

Ok.

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My initial sense of happiness at the acquittal of a positive woman in Quebec (known publicly as DC) remains for her. I'm sure she appreciates the acquittal and I wish her the best for a peaceful evening -- I can imagine it's been an emotional day.

But thinking beyond her circumstances, I'm pondering how this will play out. What kinds of "comfort" might people erroneously take when it comes to safe sex? How will this affect women?

When I heard about the DC ruling, it, I initially thought that the acquittal was based on scientific evidence about her low viral load and the lack of significant risk it meant to her partner. But reading and learning more (it was a busy morning), that's not the case. The case was actually decided in her favour because of unclear information about whether or not a condom was used -- she said yes, he said no, and the court felt the evidence wasn't clear enough to convict beyond a reasonable doubt. Court documents also questioned her partner's reliability because of "the aura of vengeance that surrounded the making of the complaints."

The bigger picture that results from decisions on her case and the second case that was in question have worrisome implications


History

A little history: Since a 1998 Supreme Court decision on HIV non -- disclosure (R vs Cuerrier) criminal charges may be laid against a person with HIV if they don't tell sex partners their HIV positive status prior to having sex if it poses "a significant risk of bodily harm." 

So what is "significant risk"?

The "significant risk" question is one that desperately needed answering and this is what people were hoping for. Since the decision in 1998, scientific and medical understanding of HIV progression, treatment and transmission has come a long way.

  1. Recent science has shown that if someone with HIV is on treatment, which reduces the amount of HIV in the body (low or "undetectable" viral load), transmission risk is significantly reduced. Some would call it negligible.
  2. Latex condoms, when used consistently and correctly, provide a barrier that HIV particles (and other STIs) can't break through, protecting both sex partners from potential infections. Again, some might say negligible risk.

The risk of transmission from women to men if only one of these conditions is met ranges from 1 in 10,000 to 1 in 12,500. (See Canadian HIV/AIDS Legal Network fact sheet "Women and HIV Criminalization of HIV Non -- Disclosure" for more info on transmission and sources). 


Today's Ruling

This morning's Supreme Court ruling indicates that both conditions must be met to avoid possible prosecution. The Canadian HIV/AIDS Legal Network, an intervener in the Supreme Court proceedings, has issued a statement that reads, in part,

"[D]espite significant advances in scientific knowledge, the Supreme Court decides condoms are not enough. 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% effective when used properly."

In the past they've raised the important issue that laws regarding HIV disclosure aren't protective.

"Criminalization creates a false sense of security that safer sex is not necessary unless so notified. This message is at odds with the fact that one -- quarter of HIV -- positive Canadians are unaware of their infection."  ("Women and HIV Criminalization of HIV Non -- Disclosure")

This is repeated in the statement this morning:

"[P]eople not living with HIV need to be empowered to accept responsibility for their own health, and not proceed under a false sense of security that the criminal law will protect them from infection."

Here at Positive Women's Network we've supported women on both sides of the issue -- those who were infected as a result of partners who didn't disclose and those who have been accused of non -- disclosure.  It is very complicated, because disclosure is complicated in this society that still works against women in so many ways. Violence against women, economic inequities, cultural expectations, societal shaming and condemnation all factor in. The law can be used against women, as shown in DC's case where the judge saw her partner seeking vengeance. BC Civil Liberties Association's  Micheal Vonn says "Every person living with HIV in this country is now just one vindictive partner away from criminal prosecution."

So where do things go from here?

First we learn. Then we share, and support women with HIV wherever their lives take them.


Media Coverage

Supreme Court HIV Rulings Angers Advocates (October 5)

 HIV Ruling Raises New issues (October 5)

HIV Ruling "A Victory for Public Health" (October 5)

HIV Decision Panned (video, October 5)

Supreme Court Fans Flames of HIV Epidemic (October 9)

HIV Ruling Was a Blow to Public Health (October 11)

High Court Stumbles in HIV -- Disclosure Ruling (October 11)

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See Also
More on HIV in Canada
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