Justice minister raises criminalization of HIV non-disclosure

The issue of whether criminal charges are the right way to deal with people who fail to disclose their HIV-positive status to sexual partners is on the table as Justice Minister Jody Wilson-Raybould meets her provincial and territorial colleagues in Vancouver.

Last year, the federal justice minister promised to examine how the criminal justice system responds to the non-disclosure of HIV status, which could include reviewing practices on laying charges and going ahead with prosecutions, as well as developing prosecutorial guidelines.

“The over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment and further stigmatizes those living with HIV or AIDS,” WilsonRaybould said in a statement published Dec. 1, 2016, which was World AIDS Day.

The results of that promised review are not expected to be shared publicly until later this fall, but WilsonRaybould was to update her fellow justice ministers at their two-day meeting in Vancouver this week, and encourage them to consider what they could do to address the issue.

The Supreme Court of Canada ruled consent to sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status. The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

The high court clarified in 2012 that this would not apply if someone uses a condom and also has a “low viral load,” but advocates argue the law has fallen far behind the science on the level of risk.

The Canadian HIV/AIDS Legal Network has counted at least 184 people — involving 200 cases — who faced charges for offences related to HIV non-disclosure in Canada between 1989 and 2016, with the majority of them occurring since 2004.

Because provinces are responsible for the administration of justice when it comes to the Criminal Code, many of the potential solutions — such as issuing prosecutorial guidelines on how to handle allegations of HIV non-disclosure — would be within their jurisdiction.