If you or a person you know is infected with the HIV virus or has developed AIDS, it’s important to know that there are stringent laws on disclosure of the disease to a sexual partner in Canada.
The law places legal responsibility on the person who has the disease to inform any sexual partners of their status. Failure to do so can lead to criminal charges and if convicted, possible imprisonment.
Why has non-disclosure of HIV/AIDS status been criminalized?
If a person who has HIV/AIDS slept with a person without disclosing it to them, the courts see that as negating consent to having sex.
Therefore the law as it stands today sees lack of consent to sexual activity where a person with HIV/AIDS has not disclosed their status to a sexual partner when:
- There is a “realistic possibility of HIV transmission”; and
- The individual would not have consented to sex had they known of the sexual partner’s HIV status.
When do you have to disclose?
If you are a person living with HIV/AIDS, you have the legal responsibility to disclose your HIV positive status to your sexual partner before having either:
- Vaginal, frontal or anal sex without a condom, regardless of viral load; or
- Vaginal, frontal or anal sex when viral load is higher than “low,” even when a condom is used.
The law is not clear on disclosure obligations for oral sex. Even though oral sex is considered as carrying a very small risk of HIV transmission, it’s not clear whether a person may still be held criminally liable if failing to disclose. It should be noted that some have been charged in the past.
What can I be charged with if I don’t disclose my HIV/AIDS status to a partner with whom I’m planning to have sex?
Under Canadian law, you can be charged with either sexual assault or aggravated sexual assault, under s. 271 and 273 of the code.
What if the person I’m having sex with also has HIV/AIDS?
You may still have a legal obligation to disclose your status, even if your sexual partner has the disease as well.
Three pivotal cases on criminal liability for non-disclosure:
R. v. Cuerrier (1998)
Cuerrier was the first case at the Supreme Court of Canada that dealt with failing to disclose status. In that decision, the Supreme Court said that before engaging in sex, people with the disease had to disclose to their sexual partner, because the disease posed a “significant risk” of serious bodily harm.
Failing to inform a sexual partner before sex made consent non-existent, because non-disclosure amounted to something like fraud. Meaning that non-disclosure before sex would be treated like sexual assault.
R. v. Mabior and R. v. D.C. (2012)
Following Cuerrier, these are the next two cases that dealt with non-disclosure. This is where the court introduced the concept of “realistic possibility of HIV transmission”. Where there is a realistic possibility, HIV/AIDS status must be disclosed to the partner before sex. However, under the court’s ruling even a very small risk can fall under “realistic possibility.”
So Cuerrier was not only upheld by these two decisions, but criminal liability for non-disclosure of HIV/AIDS status, was made even stronger. It is still a criminal offence for failing to disclose one has HIV/AIDS, but now even a small possibility of infecting another person could see one charged.
If you or someone you know has the disease it may be a good idea to consult a criminal lawyer to get more details on the legal responsibility to disclose, as it is a complex issue that can have severe consequences.
Managing your health: a guide for people living with HIV
What is sexual assault?