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Canadian Supreme Court Rules on HIV Status Disclosure

The Canadian Supreme Court today ruled that people with low levels of HIV who use condoms during sex need not disclose their condition to sexual partners, the CBC reports:

HivIn a 9-0 ruling, the top court updated a landmark 1998 decision that made it a crime if HIV carriers did not reveal their status when there was a significant risk of transmission to a sexual partner. The court ruled Friday that the "realistic possibility of transmission of HIV is negated" provided the carrier of the virus has a low viral load and a condom is used during sexual intercourse. Otherwise, HIV carriers have to disclose their status to their partners.

The court also said the new ruling does not preclude the law from adapting to future advances in medical treatment and to circumstances where different risk factors are at play. Under the previous law, HIV-carriers who didn't tell partners they had the virus could be charged with aggravated sexual assault. The maximum penalty is life in jail.

More at the CBC.

UPDATE: The interveners released a statement in response to the ruling, which you can read here.

As a coalition of interveners, we are shocked and dismayed at today’s ruling by the Supreme Court of Canada that says that even the responsible use of a condom does not protect a person living with HIV from rampant prosecution. The Court’s judgments in R. v. Mabior and R. v. D.C., two cases relating to the criminalization of HIV non-disclosure, are a cold endorsement of AIDS-phobia. They will stand as an impediment to public health and prevention, and add even more fuel to stigma, misinformation and fear. And they place Canada once again in shameful opposition to standards set out by international human rights bodies, UNAIDS and the Global Commission on HIV and the Law.

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Comments

  1. Good. Mandatory disclosure laws are counterproductive and inhumane.

    Posted by: Bears Are Fat | Oct 5, 2012 2:45:32 PM


  2. Level headed decision.

    Posted by: Jakeinlove | Oct 5, 2012 2:55:42 PM


  3. Whether there's a legal requirement or not, there's still a moral requirement to disclose. You can't diminish the stigma of HIV if you're not willing to come out of the closet without fear or shame.

    Posted by: BABH | Oct 5, 2012 3:07:03 PM


  4. someone's status shouldn't really matter if you're a responsible adult who uses condoms. i mean, COME ON.

    people tend to not get HIV from having protected sex with a guy who is open about his status, but from having unprotected sex with a guy who claims to be "DDF"

    Posted by: LittleKiwi | Oct 5, 2012 3:10:55 PM


  5. If you actually think that people who have HIV shouldn't have to tell their sexual partners that they have HIV, then you deserve to DIE from HIV.

    Posted by: EatGine | Oct 5, 2012 3:13:45 PM


  6. "Mandatory disclosure laws are counterproductive and inhumane"

    Inhumane maybe (and maybe not), but counterproductive? Do you think they lead to less disclosure? To more transmission? Do you have any data to back that up?

    Posted by: BABH | Oct 5, 2012 3:22:19 PM


  7. EATGINE: FACT nobody DIES from HIV.
    FACT people with HIGH VIRAL LOADS, who stay otherwise healthy, have lived for years before beginning HAART.
    FACT: Some people with HIV on HAART never develop AIDS.
    FACT: AIDS and OPPORTUNISTIC infections are what kill.
    Conclusion, do your homework and lose the AIDS-phobia.

    Posted by: Mr.Tim | Oct 5, 2012 3:26:02 PM


  8. if you think that you need to know that a person has HIV in order for you to use a condom you're a complete f***ing idiot.

    Posted by: LittleKiwi | Oct 5, 2012 3:26:22 PM


  9. Yes, Mr. Tim, and nobody ever died from eating cyanide, either. They just died because their cells stopped burning oxygen.

    Fact: HIV causes AIDS, which causes death. If you're lucky, HAART retards this process long enough for you to die of something else.

    Posted by: BABH | Oct 5, 2012 3:35:26 PM


  10. Littlekiwi: It's a question of consent, isn't it? Some people do not consent to sex with HIV+ people. (Not me, BTW - I prefer to reward people who disclose rather than to punish them.) There is still a small, but real risk of transmission. I'm not sure that it's up to a judge to decide what level of risk a person is willing to consent to.

    Posted by: BABH | Oct 5, 2012 3:45:15 PM


  11. Contrary to the past big "Everybody's at risk" public health PR campaigns, HIV is NOT a communicable disease.

    So, in light of THAT declaration, this ruling is really no great surprise at all to those of us that follow these issues closely, and have been critical of past an current politicization of public health policy and the constant contradictory things we've been told about HIV over the decades.

    Posted by: "The Gay" | Oct 5, 2012 3:46:44 PM


  12. Wow. There's a reason they call it "safER sex." Condoms aren't 100% effective. And contrary to misguided popular belief, people with low viral loads can and do infect others with HIV.

    You're damn right mandatory disclosure should be the law. It's not AIDS-phobia, it's self-preservation. Sorry, but AIDS kills, folks. While you may feel stigmatized, that's no reason to put other peoples' health at risk.

    Posted by: Jack | Oct 5, 2012 3:48:32 PM


  13. Yes, it's a question of consent. But any adult should be responsible with sex and that means accepting an unfortunate reality that some people will LIE.

    Define disclosure. Does this mean all of us that are negative need to show the results of our latest test to prove we're negative?

    The reality of HIV-transmissions is that it's not something that is being spread by openly-Poz people engage in protected sex. It's people who either don't ask, don't tell, LIE, and then don't use condoms.

    You cannot ever know for sure if a person is lying to you or not. So use a freakin' condom. Use a whole box. And learn how to use them properly.

    Posted by: LittleKiwi | Oct 5, 2012 3:56:05 PM


  14. LK: I quite agree. And when Party A asks, and Party B lies in order to obtain consent under false pretenses, Party B is clearly guilty of sexual assault.

    The question here is whether Party B has an affirmative duty to disclose, even if A doesn't ask. That's a closer question, precisely because A needs to take some responsibility.

    Posted by: BABH | Oct 5, 2012 4:07:58 PM


  15. It's not just about the possibility that some people will lie; and this isn't just about HIV; HIV is far from the only STD that's out there that negatively impacts health.

    The issue is, and the courts have been dealing with this for decades, that even with frequent testing, there's always a chance a test is incorrect, that it's administered too soon to be accurate, or that a person has been exposed to something after the last test.

    The only effective way to prevent exposure to STD's in general is simple. Take precautions, and take personal responsibility.

    One attitude spreads STD's. The other attitude does not. One attitude makes it everybody else's responsibility to prove a negative. The other attitude makes it your own responsibility to protect yourself from a possibility that can not ever be entirely eliminated by the person you're placing ALL the responsibility on, just so that you won't be inconvienced.

    There's reality, and there's pretending that you have no choice but to have sex with someone that might not know they have an STD. It isn't that complicated to see what policy works and what policy is entiely ineffective.

    Posted by: "The Gay" | Oct 5, 2012 4:10:47 PM


  16. @Jack, self preservation would be asking everyone you sleep with their status and always using a condom.

    Mandatory disclosure laws are he-said-she-said laws that can be, and have been, used by ex-lovers to ruin peoples' lives and reputations (i.e. the case of the jockey not so long ago).

    Mandatory disclosure laws are government intervention in an attempt at preservation of health. They have good intentions but bad consequences.

    But the real problem isn't that they stigmatize HIV+ people. The real problem is that they stigmatize HIV testing. If you're a person who is having unsafe sex but you don't get tested, you do not share the same legal burden that someone who is HIV+ but being responsible by using a condom and taking their medications has. You can legally infect as many people as you want so long as you are ignorant of the fact that you're doing so. So why get tested?

    You might think that such a person doesn't exist, but I know one person who died in the past year because he had this attitude.

    Posted by: RandySf | Oct 5, 2012 4:12:56 PM


  17. HIV does NOT cause AIDS. Never has. HIV is simply a marker virus.

    We've been conned into believing that HIV causes AIDS because scientists funded by the mega-pharmaceutical companies wanted the money. Of course, the companies themselves made huge amounts of money - and continue to do so - from the con.

    Posted by: jason | Oct 5, 2012 6:48:02 PM


  18. I'm a little conflicted on this. On the one hand, I think people should have to disclose and that should be the law. On the other, some of the laws against it were written into the books at the height of the AIDS crisis and when society was so much more homophobic, so the penalties are absolutely draconian, particularly given the fact that the virus doesn't even have to be transmitted to result in those draconian punishments taken place (like the American from that towleroad story a few weeks/months back who was put in prison for years and given permanent sex offender status when he used a condom and his virus load was so low it was undetectable).

    Ultimately, draconian punishments just don't make sense. It should be no more than a misdemeanor for a first time 'offense' of not disclosing in general, and no more than a fine or very minor misdemeanor if a condom was used.

    Posted by: R | Oct 5, 2012 7:17:47 PM


  19. Well and rationally said, @RandySF.

    Posted by: Ernie | Oct 5, 2012 7:31:31 PM


  20. How do you figure ? Just what is so freakin' stigmatizing about getting tested for HIV ? Anyone can get tested anonymously. So where's the stigma ?

    I have to call BS.

    Posted by: "The Gay" | Oct 6, 2012 2:52:52 AM


  21. As an HIV+ man, going on 20 years, this verdict dismays me. I have always been up front and honest with my sexual partners BEFORE engaging in sexual activity because, as was stated earlier, condoms are NOT 100% effective. The negative person should absolutely have the right to make the decision on whether or not THEY are willing to take the risk.

    I have been 'denied' sex specifically for that purpose, and while, yes, it was emotionally painful, I don't think I could handle the guilt if I infected someone else.

    I would also add that yes, there are people out there that will lie about their status. There are also people out there like an ex of mine that did not want to be tested because he "didn't want to know." When I asked him how many guys he might have infected, he had no idea, and he actually put the onus on THEM if they were infected. There are people like that out there.

    It may be draconian. It may be "stigmatizing." But I feel that all sexually active people (gay/straight/bi) should be regularly tested. I believe also that if someone lies, or just doesn't disclose, there should be harsh penalties.

    Not a very popular position for a lot of people I know, but that's the way I see it.

    Posted by: theotherlee | Oct 6, 2012 4:56:34 AM


  22. There's alway's the 'He said, [s]he said' factor.' How do you enforce such a disclosure law without trampling on people's rights? Dudes have to sign a release form before getting down to business, complete with a notary public?

    Yes, those who're are HIV+ should of course inform sex partners. There's a few disingenuous posters on here.

    Posted by: ratbatard | Oct 6, 2012 11:01:24 AM


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