What are your legal responsibilities if you have HIV/AIDS?

Thai activists march through Pattaya, east of Bangkok to raise awareness on World Aids Day, December 1, 2015.
Thai activists march through Pattaya, east of Bangkok to raise awareness on World Aids Day, December 1, 2015. REUTERS/Chaiwat Subprasom

Today is World AIDS Day; a day to commemorate those we have lost to the disease, and to remember that we are still fighting the disease for which there is no known cure.

While advancements have been made in treatment with effective antiretroviral drugs that are able to control the virus, and allow people to live full lives, HIV still remains a major global public health issue.

Consequently, HIV/AIDS remains a disease that people want to safeguard against, and in Canada, the top courts have recognized that and made the laws around disclosure very strict.

In October 2012, two important cases came out of the Supreme Court of Canada, which dealt with people who were HIV positive, but failed to disclose that information to their sexual partners.

Those two decisions were: R. v. Mabior and R. v. D.C. In the first decision, the man knew he was HIV positive and did not disclose that fact to several women with whom he had sex. In the second decision, D.C. had sex with her abusive former partner only once before she told him she was HIV positive. They went on to have a relationship after the disclosure. It was only when the relationship ended that her former partner went to police about her failure to disclose.

Both were charged with sexual assault and aggravated sexual assault, but only Mabior’s convictions were upheld at the Supreme Court. It should be mentioned that the two respondents didn’t infect any of the complainants in the cases.

In both cases, the Supreme Court made rulings that found that the failure to disclose that you are HIV positive before having sex with a person makes one criminally liable.

In mulling over the two cases, the court revisited an earlier Supreme Court decision, R. v. Cuerrier, which dealt with failure to disclose HIV status to a partner. In that decision, the Supreme Court ruled that not advising a sexual partner of having HIV most likely negated that person’s consent to have sex – meaning it’s considered sexual assault.

The Supreme Court expanded upon R. v. Cuerrier in 2012, and made the law even more severe when it comes to disclosure. Now, where there is a “realistic possibility of HIV transmission”, HIV status must be disclosed to a sexual partner before sex. However, even a very small risk is considered a realistic possibility.

When it comes to “no risk” activities, such as kissing, there is likely no duty to disclose, because it doesn’t pose a realistic possibility of HIV transmission. However, the further you go with a partner, the more likely it is that you will have to disclose your status.

If you are concerned about disclosure obligations, you may want to consult with a lawyer.

So, be safe, protect yourself and remember, disclosure of HIV status to a sexual partner is a legal obligation in Canada.

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