The Law at Your Back: HIV Disclosure

Disclosure is an emotional journey that is “never easy,” says Carol, who has been an HIV activist for a long time. Because she’s so politically active, people might assume disclosure is a piece of cake to her, but no. Meeting new people means deciding about disclosure again and again. She’s not alone. For women coming into PWN for the first time, disclosure is one of the most asked about issues. Just when do you tell someone you have HIV? Are there times when you must? Simply, yes. Disclosure is personal, intimate, and legally mandatory.

According to Canadian law, if there is a “significant risk of serious bodily harm” – that is, exposing another person to HIV – then disclosure must occur. (Note it’s exposure to HIV that is considered the risk. Infection doesn’t have to occur). Both unprotected vaginal and anal sex are considered significantly risky, but that doesn’t mean significant risk doesn’t apply in other situations as well. A case of exposure through oral sex hasn’t been brought to the courts, nor has sex when a condom breaks, but these also might be considered significantly risky. "Significant risk" can be applied elsewhere too, as  in the situation where an Ontario a woman was convicted when she didn’t disclose to health care providers and put her newborn at risk. 

Attempting to manage HIV disclosure with the law is a thorny point for AIDS activists. Criminalizing HIV disclosure doesn’t guarantee safety in intimate relationships and could actually lead to a false sense of security. It also adds to the stigma of living with HIV. Even people living with HIV are mixed in their responses to whether it’s a good idea or not. There are women have been infected by partners who kept their status a secret and support the law. Then there are women who feel trapped in a tough place, fearing prosecution if they don’t disclose and violence if they do. Sex workers can be caught in this dilemma Could their defense be fear of violence? We don’t know what the legal decision might be. 

Despite the many details that entangle with sex, the law is clear: disclose or face possible criminal prosecution. If you’re living with HIV, or working with people who are, knowing HIV disclosure is the law is important. A person can’t claim ignorance of the law as a defense. For more detailed information, check in with the Canadian HIV/AIDS Legal Network. (We will also feature a longer article on disclosure in our upcoming issue of The Positive Side).

- Janet

This was posted on Friday, March 13th, 2009 at 9:30 am and is filed under Education & Resources . Feel free to respond, or trackback. Read our comments policy.

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