October 5, 2012

Controversial Canadian Supreme Court Ruling on HIV Disclosure

The Supreme Court of Canada said that people living with HIV are open to criminal prosecution for not disclosing their status before intercourse unless they meet two criteria: they must wear condoms and have a low viral load, CTV News reports. As POZ blogger Edwin Bernard writes, “this is a retrograde step for both public health and human rights” that "undermines safer-sex messaging by stating that condoms alone…do not prevent a 'realistic possibility' of HIV transmission." Previously, a 1998 Supreme Court ruling established that people aware of their status only need to disclose when they engage in sexual activity that poses a "significant risk" of serious bodily harm. But that was open to interpretation, and hence the new court ruling. The October 5 decision addresses two cases heard by the court in February 2012 regarding the 1998 ruling. Prosecutors from the two provinces where the cases originated, Manitoba and Quebec, petitioned the court to rule that all HIV-positive people should be legally compelled to disclose to their sex partners, regardless of the risk reduction associated with condom use and effective HIV treatment. Canadian HIV advocate Richard Elliott said the ruling is not good news for people living with HIV and that even using a condom won’t protect them from prosecution.

To read the CTV News article, click here.

To read Edwin Bernard's blog, click here.

Editor's Note: This newsfeed item has been updated.

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Previous Comments:

Andy, , 2012-12-03 15:22:00
Why is it the only time we ever talk about the imperfection of condoms is when we're justifying disclosure laws? Every other time, we're expected to take ownership of our presumed failure to use them, by both poz and neg society. If we insist we did use them, we're regarded as being in denial. The inconsistency between these two viewpoints on the effectiveness of condoms begs a question, is society really trying to achieve-an honest discussion of risk, or a demonization of HIV+?

brian F, grand Rapids, Michigan, 2012-10-11 18:44:07
That is how all of us got the disease in the first place. should all STD's from gonoerhea, Herpes, HPV, etc should be legally disclosed before contact. Boy is that a date killer as the bar closes at 2 am the next day and all of our decisions are made of clear conscience and informed consent. Is this the same as rape. There are drugs for HIV contamination there are none for an aggrevated assault like rape! Really? I may be HIV positive but my sexual encounters are not assaulting anyone! If thek

Andy, Toronto, 2012-10-08 21:07:30
The onus should NOT be on the HIV positive person to tell their partner to use protection. Nor should an HIV positive person be forced to disclose. I should NOT be responsible for a grown adult who refuses to practice safer sex. Any gay man that goes to the bathhouses or online KNOWS there are men out there that bareback and do not practice safer sex. So why should I or any other positive man be responsible for an adult that refuses to be responsible and use condoms

Ting, Oshawa, 2012-10-08 17:15:56
disclosure is a moral issue,it should not be one punishable by lengthy prison sentence & the courts ruling found a balance. The issue is one of risk. Both partners in sex have mutual responsibility to practice safe sex, & if people prefer to be unsafe, having multiple random partners, they cant expect the court to offer them safety. Courts also should not discriminate, there are other diseases like Hepatitis, which could be fatal, yet no law force disclosure. This ruling is intelligent.

Dave, Newport News, 2012-10-07 03:21:48
As a positive individual, I understand that generally its not spread with a condom, but I still feel any partner I'm going to have deserves to know. Its all how its approached, my current partner and I fell in love practically at first site, time has passed--nothings changed. He's negative, I'm positive. We are safe about it, and keeps up with how I'm doing with it. Had I hid it from him early on, who knows if this would have happened. Required or not--I'm disclosing to do what's right.

serodiscord, montreal, canada, 2012-10-06 11:43:50
I had tears of joy as I read the initial headlines for this news story in my local paper. As I read the full report however, that short lived joy turned to rage. As it stands, Canada had a more lenient definition of "significant risk" back in 1998 when such an assessment was before the courts. I encourage members and media to follow the statement and news release of the Canadian HIV / AIDS Legal Network for a clear understanding of this terrible injustice. www.aidslaw.ca

Ms Sheila, Naughton,Ont,Canada, 2012-10-05 19:48:57
I am HIV positive and I have been for 8 yrs now.I was so scared to date anyone becuase we had to disclose my HIV to my partner,and now I hear that we don't have to.Is this really true that we don't have to disclose our selves to anyone.Wow now tell me if this ia true or not.And if it is wow I am shocked now.

Mark, New York, 2012-10-05 14:59:45
Condoms can break during passionate sex. It's only fair that sexually active people disclose before engaging in sexual activity that can transmit HIV. Many HIV+ people seek out partners who are + in order not to infect negative people. There is no shame in being +, but rules of conduct should apply.