The Supreme Court of Canada issued its new HIV disclosure ruling Friday morning, and few seemed happy with the details: Canadians with HIV who have a low viral load and use condoms no longer have a legal duty to disclose their status to their sexual partners. The new legal standard means that a partner’s failure to disclose is no longer always a crime.
“Specifically, today’s decisions said that in order to obtain a conviction for aggravated sexual assault, the Crown must show that an accused person failed to disclose his or her HIV status despite there being ‘a realistic possibility’ of transmission,” The Globe and Mail’s Kirk Makin wrote Friday.
“It said that defendants can prove there was no realistic possibility of transmitting the virus by furnishing proof that medication had reduced their viral load substantially and that a condom was used during sex.”
The court said it has clarified disclosure for those living with HIV, but the ruling seems to have satisfied few on several sides of the debate.
Advocates say the Supreme Court’s action is repressive and stigmatizing for many people living with HIV, especially in light of medical advances that can suppress the level of an infection to negligible levels. Their main issue: that condoms are no longer enough.
“In practice, today’s ruling means that people risk being criminally prosecuted even in cases where they exercised responsibility and took precautions, such as using condoms – which are 100 per cent effective when used properly,” read a statement from the Canadian HIV/AIDS Legal Network.
On the other hand, others critics are disturbed that some HIV patients now no longer have to disclose their status to unknowing sexual partners.
“While I feel for the plight of those with HIV, who face in addition to their disease a lifetime of significant discrimination – particularly when it comes to sexual partners – that in no way absolves them of having to tell their partners,” wrote one reader commenting on the Globe site.
“People have the right to informed consent to exposing themselves to risk. Someone's right to have sex doesn't trump another person's right to keep themselves healthy and STI-free,” wrote another.
Other readers quibbled with the new conditions, from condoms breaking to the practicalities of constantly keeping track of your viral load: “Do we now have to walk around with a report of what our viral load is?” wrote one.
Others still hoped the legal obligation would extend to other sexually transmitted infections, including genital herpes, which people are stuck with for life once they’ve been infected.
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