HIV Disclosure and Criminal Law

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How criminal law applies to HIV disclosure and sexual partners is complex and confusing. There are no criminal laws that deal specifically with HIV disclosure to sexual partners but both the assault and sexual assault sections of the Criminal Code have been used to charge individuals who do not disclosure their HIV status to people they have sexual contact with.

The criminal law protects people from unwanted physical contact with others. Depending on the circumstances unwanted contact can be considered assault or sexual assault. Even if someone consents to the contact, it can still be considered assault or sexual assault if their consent is not valid under the law. One way that consent can be considered invalid under the law is if it was obtained by fraud. In 1998 the Supreme Court ruled that consent was obtained by fraud where an individual had unprotected sexual intercourse without disclosing that they were infected with HIV and therefore exposed their partner to a significant risk of suffering serious bodily harm.

If it endangers the life of the victim, contact without consent can be considered aggravated assault or aggravated sexual assault. In that same 1998 case the Supreme Court ruled that unprotected sexual intercourse with an HIV positive person endangers the life of their partner, so comes within the definition of aggravated assault regardless of whether the partner ever actually becomes infected or not.

Recently a lower Court in British Columbia considered this ruling by the Supreme Court in light of advances in both the understanding of how HIV is transmitted as well as in the treatment of HIV. The British Columbia Court took the position that whether there was a significant risk to the life of a partner was something that had to be determined in each case according to the facts of that case and what we now know about transmitting HIV and living with HIV.

The Court heard medical testimony that with advances in treatment people living with HIV who receive appropriate treatment have a normal life expectancy. The Court recognized however, that the drugs used to treat HIV continue to have possibly serious side-effects. The Court also heard that treatment reduces the viral load to levels that, in some cases, are undetectable. The Court took note of the fact that the risk of transmission of HIV varies greatly depending on the viral load of the infected person and that transmission was virtually unheard of in cases where the viral load was at an undetectable level. As well the risk of transmission will vary in each case depending of the type of sexual contact and the frequency of that contact.

Based on the 1998 Supreme Court decision, the B.C. Court concluded that to support a charge of aggravated sexual it must be shown both that the consent was obtained through fraud and that the sexual contact posed a significant risk to the infected person's partner. Based on the number of times that the accused had unprotected sex with his partner, as well as the accused's viral load and the type of sexual contact he had with his partner the Court found the risk of transmission to be .12% in this case. Because of this low risk of transmission and because the Court found that although HIV causes serious lifelong harm it is now largely treatable, the Court concluded that the accused's conduct did not pose a significant risk to his partner that would support a charge that he had endangered his partner's life.

The Court went on to consider whether the accused had obtained his partner's consent through fraud. This would mean that consent was not valid. The Court noted that to prove fraud it must be shown that the accused was dishonest and that this dishonesty resulted in a significant risk of serious bodily harm to his partner. While the Court concluded that the accused was dishonest, the Court did not find that this dishonesty resulted in a significant risk of serious bodily harm to his partner. Again this was based on the type and frequency of the unprotected sex as well as the seriousness of contracting HIV.

As can be seen from these cases when failure to disclosure HIV status to a sexual partner can be considered a crime is both a complex and an evolving area of the law.