Ontario limits criminal prosecutions of HIV positive people for non-disclosure
Ontario says it will be restricting criminal prosecutions of Hiv-positive people who don’t disclose their status to sexual partners.
The province’s attorney general and health minister announced that Ontario Crown attorneys will no longer be pursuing criminal cases against people who have had a suppressed viral load for six months.
Non-disclosure has led to assault or sexual assault charges, because it’s been found to invalidate a partner’s consent — current wisdom suggests that if they knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.
The federal government released a report Friday, to coincide with World AIDS Day, saying existing laws aren’t being applied consistently across the criminal justice system to people who don’t disclose their HIV status.
Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins say in recent years medical treatment for HIV has advanced significantly to the point that it can be a chronic but manageable condition, and the province’s laws should reflect that.
They say there is a growing body of evidence that there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.
The federal Justice Department study pulled together scientific evidence and the current prevalence of HIV in Canada and treatment, and stacked it up against the way the criminal justice system currently handles cases of people who don’t disclose their HIV status prior to engaging in sexual activity.
Current science suggests the risk of transmission is basically negligible if those living with HIV are being treated or taking appropriate precautions, the study concluded.
“It can, therefore, no longer be assumed that a person living with HIV in Canada is at risk of transmitting it.”
But the law is not being applied consistently in that regard throughout the country, and the way it is being used needs to take into account a range of factors, including the scientific risks of transmission and degree of blameworthiness. For example, the study noted, not everyone has equal access to HIV treatment or other services to help them manage the risks.
While the study’s publication coincides with World AIDS Day, it also follows a landmark apology in the House of Commons this week for past statesanctioned discrimination against the LGBTQ community in Canada.
The milestone saw many advocates raise concerns about the current regime of criminalization of the non-disclosure of HIV, noting it had been a year since Justice Minister Jody Wilson-raybould had promised to look into it and consider providing better guidance to prosecutors.