HIV criminalization

According to a Supreme Court of Canada decision in 2012, people living with HIV have a criminal  law duty to disclose their HIV status to their sexual partners before sexual activity that poses “a realistic possibility of HIV transmission.”¹ Based on the Supreme Court’s decision, there is no realistic possibility of HIV transmission when a condom is used and the person has a viral load of under 1,500 copies/ml of blood at the time of the sexual activity. The law surrounding oral sex remains unclear.

Recently, however, the scientific evidence behind U=U has resulted in positive changes to criminal prosecution policy in the territories and some provinces. This document from the Canadian HIV/ AIDS Legal Network provides an overview of the laws and policies governing HIV non-disclosure in Canada.²

U=U offers scientific evidence to reduce fears of transmission, to minimize the anxieties around having to disclose, and, in some territories and provinces, to reduce the number of circumstances where people with HIV will face criminal prosecution for non-disclosure. One of the most welcome events at AIDS 2018 was the publication of an expert consensus statement³ on the science of HIV in criminal law authored by 20 of the world’s leading scientists, including two Canadians.

Based on robust evidence, the statement counsels caution when prosecuting people for HIV transmission, exposure, and non-disclosure and encourages governments, law enforcement officers, and those working in the judicial system to carefully note advances in HIV science to ensure that current knowledge in this field informs the application of the law.