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Subscribe to RSSCanada's top court said on Friday that failing to tell a sexual partner you have HIV is only sexual assault if there is "a realistic possibility" of transmitting the virus that causes AIDS.
In a unanimous decision, the Supreme Court of Canada rejected the government's argument that everyone who has HIV should be required to disclose that condition to all sexual partners in any circumstance.
Several groups involved in the case, including the Canadian HIV/AIDS Legal Network and the Canadian AIDS Society, took issue with the court's standard of a "realistic possibility," saying it is too severe, and calling the decision "a major step backwards for public health and human rights."
The HIV groups said in a release that the risk of spreading HIV is made negligible just by using condoms, and that the court's decision "blatantly ignores solid science."
"What you're talking about here is a vulnerable, marginalized group of people who are going to be forced to go around volunteering to anyone with whom they're going to have sexual contact, that they belong to that vulnerable, marginalized group," Michael Feder, a lawyer for the British Columbia Civil Liberties Association, told the CBC.
In 1998, the court found that not telling a partner about one's HIV status was a form of aggravated sexual assault if there was "significant risk of bodily harm." On Friday, the court clarified what might constitute a significant risk.
It said someone with a low viral load who uses a condom has not put their partner at significant risk. Viral load measures the severity of HIV infection, and some treatments reduce the level, making transmission less likely.
"As noted by the court of appeal, the transmissibility of HIV is proportional to the viral load, i.e. the quantity of HIV copies in the blood," the decision said, according to City News. "The viral load of an untreated HIV patient ranges from 10,000 copies to a few million copies per millilitre.
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"When a patient undergoes anti-retroviral treatment, the viral load shrinks rapidly to less than 1,500 copies per millilitre (low viral load), and can even be brought down to less than 50 copies per millilitre (undetectable viral load) over a longer period of time. This appears to be scientifically accepted at this point, on the evidence in this case," the decision said.
The court noted that standards might change in future cases since its decision does not preclude the law from "adapting to future advances in treatment" or risk factors it had not directly considered.
It said that risk of transmission, rather than actual transmission, is not a crime in many other countries, and that this "sounds a note of caution against extending the criminal law beyond its appropriate reach in this complex and emerging area of law."
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Forcing everyone to disclose their HIV status would risk sending people who have not put anyone at risk to prison, the court said.
Two cases were considered by the court, the first one involving a man who had sex with nine women, including a 12-year-old girl, after being diagnosed with HIV in 2004, CBC reported. Clato Mabior didn't tell the women he was HIV positive.
None of the women contracted the disease, City News said. The Supreme Court set aside one of Mabior's convictions because in that respective situation he used a condom and had a low viral load. In Mabior's case, this decision has little consequence, since he was deported to South Sudan in February, City News said.
In the second case, a Quebec woman who had unprotected sex with her partner in 2000 did not tell him she was HIV-positive.
According to City News, the woman had been taking anti-retroviral drugs after she was diagnosed with HIV nine years earlier.
"Here low — indeed undetectable — viral load was established," the Supreme Court concluded, according to City News.
The court affirmed an earlier appeal court decision to strike down the woman's conviction for aggravated assault and sexual assault.
Reuters contributed to this report.
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In human nature there is a remarkable capacity for self deception, especially when under the pressures of sexual frustration. Get ready for horny HIV people across the country to lie to themselves in order to get guilt free sex "It's ok, it's legal, I have a low viral load" even if they don't have a low viral load, they'll believe what they want in order to justify their actions. Others who know they have a medium or high viral load will tell themselves "It's ok, I'll just tell the court I thought my load was low viral" even if that doesn't work in court desperate people will tell themselves it will.
Get ready for lies and self-deception across Canada as viral carriers gear up to infect the populace. I don't blame them, it's only human. I blame the courts for blowing the lid off this pandoras aids box.
Ultimately the choice to have sex or not with a person infected with a deadly disease should be up to you, it's not a decision that should be forced upon you. I feel sorry for all the people who are about to become infected because a law with "good intentions" failed to take human nature into account.
This is disgusting and dangerous and we shouldn't stand for it. It's wrong. I feel sorry for the HIV sufferers who aren't getting laid enough, but sorry, our right not to get infected is more important. I also feel sorry for all the hate this is going to breed against those poor honest HIV sufferers who are now about to be hated across Canada out of the fear and distrust this situation will cause.
It's all magic, so have happy thoughts and do whatever you feel like doing, because the consequences for other people of your actions are their problems due to their being foolish, really . . .
Really! :-(
I sometimes wonder if people actually READ the whole article before posting comments. You're all acting like ANY exposure is an automatic death sentence.
First, if you read the article, you'll notice that this guy had sex with 9 females. He's a sicko for having sex with the 12 yr old but that's not the issue here. The issue is that of those nine whom he had sex with, NONE contracted HIV. Before everybody screams at me let me just say that I fully support the idea of disclosure of HIV status. That said, I find it hard to conclude that there was a GREAT risk when 0/9 contracted HIV. I therefore surmise that your concerns are actually not about degree of risk but rather the possibility of dire consequences should you end up being the unlucky one who DOES contract HIV. I would suggest that there are many people who are living wonderful lives and they are HIV+. It CAN be a death sentence if nothing is done about treatment but I personally know of 3 people who having been living with HIV for over 20 years and are still going strong with no major presenting problems. Fight your fear and get educated about what the REAL state of HIV is in this country.
Second, I see so many on the left screaming about individual liberty to do what one wants and just as many on the right screaming about personal responsibility for actions. If you CHOOSE to go home with a complete stranger and don't insist on precautions you have yourself to blame as well as the person who transmitted the disease. Again, before you all start screaming at me: what about condom breakage, let me just inform you that they have been shown to be over 99% effective and the other appx 1% was due to incorrect condom usage ( improper lubricant, failure to apply lubricant correctly and in the correct place which is ouside the condom not inside, type of condom-don't use lambskin condoms). In short, used correctly there is almost NO RISK of contracting HIV while using a condom and even less risk when viral load is undetectable.
Third, if you DO happen to slip up and have unprotected sex WITH A COMPLETE STRANGER, then there is a "morning after" treatment called PEP(Post-Exposure Prophylaxis) that is very effective if begun within 72 hours. It does require a month of pills and can be expensive without insurance but what's money when you're willing to risk your life on a one night stand, right? Yes and no. You're not really risking your life all that much. It's not a death sentence. Get educated.Again, I'm not advocating for risky behavior just trying to put a realistic face on it.
Finally, if you DO ask about HIV status or if the issue comes up and the infected person doesn't disclose and you later contract HIV, sue and take them for what they're worth. You did the responsible thing and they lied. As for whether it should be criminal behavior...I think there needs to be intent to infect unless there is clearly a great risk involved which all the evidence suggests otherwise. It's the 21st Century and amazing things are happening including the treatment of HIV. Catch up and you'll feel safer and be safer..
Additional-
Just thought I'd also mention that a person doesn't go out one night, get infected, and know they're infected the next day. Symptoms of infection can take up to 2 years to show up. Also, even if you get tested after having unprotected sex, not good enough. It can take up to six months before the virus becomes detectable by tests. How many people do you know that would follow up with tests for 6 months and NOT have sex during that time, even with a condom? Take EQUAL responsibility for safe sex, people.
You'd think the decision came from the 9th Circuit.
Thank God we never let Canada become a state! lol
The fornicators, the drug users, those who live immoral lives and thusly become infected need to be quarantined!!!
I suppose your moral standards are the only ones that count?
Fornicators? I suppose you think "fornication" is strictly for procreation too.
You are a dangerous person thinking people should be quarantines for a disease that is not airborne.
I don't agree with the ruling but that's Canada's business.
Let's see. If you apply for a job and they ask if you have a criminal record, you have to tell them. Ok fair enough. However, if you have aids you don't have to tell your partner. Were are the rights of the partner in this? What a backwards way of treating it's people.
If they are feeling so marginalized they should run a candidate for President and several for the legislature.
Don't engage in promiscuous un-safe sex and you should be safe.