Disclosing Your Status
Essential facts about criminal law & HIV disclosure
(excerpted from Canadian AIDS Society/Canadian HIV-AIDS Legal Network, HIV Disclosure & the Criminal Law in Canada: Responding to the Media and the Public)
People living with HIV have a legal duty to disclose …
As a result of the Cuerrier decision of the Supreme Court of Canada, people living with HIV have a legal duty to disclose their HIV status before engaging in behaviours that put another person at significant risk of serious bodily harm. The Court clearly stated that risk of HIV infection is risk of a serious bodily harm.
An HIV-positive person does not have to infect the other person with HIV to be criminally charged. It is enough that they put the other person at a significant risk of HIV infection.
The two most common situations where there is a significant risk of HIV transmission are: (1) unprotected sexual intercourse (anal or vaginal); or (2) sharing injecting equipment (needles and syringes) that contains HIV-infected blood.
Practically speaking, this means that people living with HIV must disclose their HIV status before having unprotected intercourse (vaginal or anal) and before sharing injecting equipment (needles and syringes) that contains HIV-infected blood.
In the Cuerrier case, the Supreme Court suggested that careful use of a condom may reduce the risk of HIV transmission to the point where the risk of serious bodily harm is not significant. And as a result, an HIV-positive person who properly uses a condom might not have a legal duty to disclose his or her HIV status before engaging in sexual intercourse. But this was only a suggestion by the Supreme Court, and it not the law.
Whether or not a person living with HIV has a legal duty to disclose their HIV status before sex (or sharing injection drug equipment) will depend upon the risk of HIV transmission associated with the sexual (or drug injecting) activity.
People living with HIV do not have to disclose their HIV status to sexual partners before engaging in activities that pose no risk or negligible risk of HIV transmission. [kissing; cuddling; mutual masturbation; digital-anal intercourse, insertive or receptive fellatio/cunnilingus with a condom.]
It is unclear whether or not people living with HIV have a legal duty to disclose theirHIV status to sexual partners before engaging in activities that pose low risk of HIV transmission [oral sex without a condom; intercourse with a condom]. In R v Edwards, a lower court judge indicated that there is no legal duty to disclose HIV status before unprotected oral sex because it is a low risk activity.
In the Williams case, the Supreme Court of Canada opened up the possibility that a person who is aware of the risk that he or she has contracted HIV may have a legal duty to tell his or her sex partner about this before engaging in unprotected sexual intercourse. So a person who thinks he or she may be HIV-positive, even if he or she does not know for sure, may have a duty to tell sexual and injection drug use partners before engaging in high-risk behaviour.
The Supreme Court in the Williams decision also left the door open for people living with HIV to be held criminally liable for engaging in activities that would put an HIV positive person at risk of re-infection with HIV. Depending on the medical and scientific evidence, it may be possible to prove that re-infection with a different or drug-resistant strain of HIV can result in a serious bodily harm that would endanger the life of someone who was already HIV-positive. So even if people living with HIV know that their sexual or drug injecting partner is HIV-positive, they may have a legal obligation to disclose their HIV status to that person when engaging in activities that have a significant risk of HIV transmission. But a court has not definitively decided this issue.
What Criminal Code charges do people living with HIV face if they breach the legal duty to disclose?
People who are charged under the Criminal Code for putting others at risk of HIV infection are likely to be charged with either aggravated assault or common nuisance, or both.
Under the Criminal Code, a person commits an assault when he or she applies force intentionally to another person without the other person’s consent. Force means touching. The person’s consent to the touching (or sex) is not valid if it is obtained by fraud. Fraud means either lying or not telling. The maximum term of imprisonment for assault is 5 years.
Under the Criminal Code an assault becomes an aggravated assault where a person commits an assault that endangers the life of another. The maximum term of imprisonment for aggravated assault is 14 years. In the Cuerrier case, the Supreme Court decided that an HIV-positive person who has unprotected sexual intercourse without disclosing his HIV status is guilty of aggravated assault because of the risk of infection with HIV, which endangers the other person’s life.
In the Williams decision, the Supreme Court was faced with a situation where an HIV-positive person had unprotected sexual intercourse with someone who was likely HIV-positive. The Court decided that where there is a reasonable doubt whether or not the other person was HIV-positive before the unprotected sexual intercourse, the person’s life may not have been endangered. So the HIV-positive person cannot be found guilty of the Criminal Code offence of aggravated assault. But he or she would be guilty of attempted aggravated assault. The maximum term of imprisonment for attempted aggravated assault is 7 years.
Under the Criminal Code, a person is guilty of common nuisance if he or she fails to discharge a legal duty and as a result endangers the lives, safety or health of the public. People living with HIV have a legal duty to disclose their HIV status before engaging in any activity that carries a significant risk of HIV transmission. People living with HIV have been convicted of common nuisance for having unprotected sexual intercourse without first telling their sexual partner that they were HIV-positive. The maximum term of imprisonment for common nuisance is 2 years.
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