Reversal of HIV Non-Disclosure Case A Turn in the Criminal Road

HIV disclosure can be a difficult thing, and in Canada it can turn into a legal issue. In an interesting turn two weeks ago, the Manitoba Court of Appeal overturned four of six convictions against a man who was HIV+ yet didn’t disclose his status to his sex partners. This legal decision will contribute to growing body of cases that set legal precedent when it comes to the criminalization of HIV disclosure. Here’s how I understand it.

Manitoba Court of Appeal Justice Freda Steel decision examined the slippery slope of “significant risk of serious bodily harm.” This term was introduced to Canadian courts back in 1998 in the definitive R. v. Cuerrier case. In that case, Ronald Cuerrier didn’t inform his sex partners of his HIV status either. The ruling made at the time, and influential ever since, stated that if a positive person exposes their partner to “significant risk of serious bodily harm” through unprotected sex without disclosing HIV status, they may be charged with assault, sexual assault, or aggravated sexual assault (charges depend on the circumstances).

There have been many questions over the years of what this means in other situations. Would the use of a condom reduce the possibility of significant risk? What about oral sex, where HIV transmission is less likely? What if a person’s viral load was undetectable? The ruling in the Cuerrier case didn’t answer these questions.

In the Manitoba decision, Justice Steel validated that condom use and undetectable viral load reduce the significant risk of serious bodily harm. She consulted recent developments in HIV science to overturn the conviction. Research has shown that when consistently taken as prescribed, antiretrovirals can reduce HIV viral load to undetectable levels, making a person unlikely to transmit HIV to sexual partners. Justice Steel suggested that an undetectable viral load would reduce “significant risk” to ordinary risk and also noted that the careful use of a condom (regardless of viral load) could also reduce significant risk to ordinary risk, because HIV treatment has become so advanced that HIV no longer as life-threatening as it once was.

(As an aside, the undetectable viral load = unlikely to transmit HIV equation forms the basis of what’s come to be known as the “Swiss Statement.” In early 2008, the Swiss Statement suggested that long term, monogamous serodiscordant couples could relatively safely have unprotected sex if the positive partner had a well controlled undetectable viral load for at least six months.)

It will be interesting to see how this legal decision will carry weight in the future when it comes to deciding whether or not to charge an HIV+ person. It only applies to Manitoba, and it only applies to this case, but it will have an influence. It doesn’t answer questions about oral sex, or coerced sex, or consent that’s later withdrawn. This case does not dictate what may happen in the future of other cases, but that fact that it’s using updated science is a great step. We’ll see what direction it takes. For more information on HIV and criminalization of disclosure the Canadian HIV/AIDS Legal Network is a great source.

- Janet  

This was posted on Friday, October 29th, 2010 at 9:00 am and is filed under Education & Resources, HIV and the Law, HIV stigma, HIV Transmission, News . Feel free to respond, or trackback. Read our comments policy.

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