Sarah Leamon: Those living with HIV are caught in a legal quagmire

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      If you are a sexually active, HIV-positive Canadian, you could be charged with a criminal offence.

      The law around this is commonly referred to as "nondisclosure", and it can happen when an HIV-positive individual fails to disclose their HIV status to their sexual partner.

      The Supreme Court of Canada has ruled that people living with HIV carry a positive legal obligation to disclosure their HIV-positive status, regardless of the circumstance, prior to engaging in sexual relations with a new partner. If they do not, they could be charged with criminal offence—most commonly of which would be aggravated sexual assault.

      The legal obligation to disclose one’s HIV-positive status was first established here in the 1990s. But by 2012 it became harsher and more stringent. This occurred following the release of two landmark cases, R. v. Mabior and R. v. D.C.

      The court declared that people living with HIV must disclose their status prior to any relations that pose a "realistic possibility of HIV transmission"—but what that means can get murky.

      At this point, anal sex is still widely considered to be riskier than vaginal sex or oral sex. Regardless of the act though, the law means that people with HIV must disclose their status regardless of their viral load if they are not using a condom. If they opt to use a condom, they still must disclose if their viral load is anything higher than what is considered "low". Of course, the realistic possibility of transmission is always something can be left open to some degree of medical interpretation.

      It is also important to know that silence about one’s HIV-positive status can constitute a failure to disclose. This applies even in circumstances where an individual makes no effort to establish the HIV status of their partner prior to engaging in sexual relations.

      The onus to disclose always lies on the HIV-positive partner—and it is scrupulous.

      Moreover, criminal charges can be laid regardless of whether or not HIV was actually transmitted and without any consideration as to context of the relationship. This means that an HIV-positive individual may face charges for nondisclosure in any type of circumstance—whether it is in the confines of marriage or within the context of a paid, client-sex worker arrangement.

      So what does this mean for people living with HIV?

      It ultimately means that they are subject to a different criminal standard than others when it comes to their sexual relations.

      While there is little doubt that nondisclosure laws have developed with the protection of the public in mind, they have also created a difficult double standard for those among us living with HIV.

      This is particularly problematic when we consider the fact that most individuals living with HIV are subjected to stigmatization and discrimination as a result of their viral status. An HIV diagnosis often comes with a set of unfair assumptions about the individual and their "lifestyle"—and when the vast majority of scenarios which result in criminal charges come down to a 'he said, she said" scenario, the cards seem stacked against the accused.

      Moreover, while such allegations may difficult to prove in court, they are often all too easy to allege, and sometimes a mere allegation can have devastating consequences for a person's professional and personal life. The thought of a jilted ex-partner seeking revenge through the criminal justice system at a later date is a daunting one for anyone living with HIV. The Supreme Court of Canada case of R. v. D.C. presents a jarring illustration of this scenario realized.

      But even when relations are not consensual, HIV-positive Canadians may have something to worry about.

      Consider a situation involving rape.

      As the law stands today, an HIV-positive person could, theoretically, be charged with aggravated sexual assault if they were to become the victim of a sexual assault. This is a baffling thought. It is particularly scary for women who have been diagnosed with the virus, as they are disproportionately subject to more sexual violence than men.

      While a case like this has not yet come up in Canada, it may be only a matter of time.

      The law also leaves a bevy of questions open for other, nonsexual situations where HIV may be transmitted—for instance, through the use of intravenous drugs or during pregnancy and breastfeeding.

      These issues have yet to be canvassed in full by our courts. But in 2006, an Ontario woman was convicted of a criminal offence after she failed to disclose her HIV-positive status to health-care workers immediately following the birth of her son. This verdict certainly has important implications for HIV-positive mothers or women who may one day wish to become mothers.

      Finally, it should be noted that while law is open to advancements in medical technology, it still seems to lag behind at a significant pace.

      While an HIV diagnosis practically meant a death sentence 30 years ago, the impact of the virus on the ordinary lives of HIV-positive Canadians is not nearly as daunting as it once was. Recent developments in antiretroviral medications have vastly improved lifespan projections for HIV patients. They have made a relatively ordinary life with the virus completely attainable.

      Our current legal landscape does not seem to adequately reflect these developments.

      As it stands today, HIV nondisclosure law in Canada is relatively well-defined—but it still has a long way to go. While it attempts to protect the public from the spread of HIV, it does not take into account complex dynamics of interpersonal relationships or the multitude of barriers that are often faced by marginalized groups. It has not caught up with advancements in medical technology, and the road to doing so is likely to be a long one.

      With so many questions still left to answer, one wonders if there aren’t better methods available to address this complex societal issue.