A group of infectious-disease experts maintains non-disclosure of HIV infection to a sexual partner should never be grounds for criminal prosecution. A provocative position, and contrary to Canadian law.
In a joint statement at the recent Canadian Conference on HIV/AIDS Research, six HIV experts said the latest scientific evidence shows the risk of sexually transmitting the virus varies from low to zero. However, they did not say there's no risk whatsoever.
Which is why our criminal law still prosecutes HIV-positive individuals who don't disclose their status to a sexual partner or, alternatively, don't use a condom during sexual intercourse. (HIV doesn't pass through properly used latex condoms.)
The scientists are right to underline that HIV transmissions have dwindled in Canada due to the efficacy of antiretroviral treatments. They're also correct that "HIV has become a chronic, manageable disease."
In the 1980s and early 1990s diagnosis of HIV was tantamount to a death sentence. But with improvements in antiretroviral treatments during the last two decades, the risk of infecting a sex partner has changed. Antiretrovirals can reduce viral loads to low or undetectable levels, which reduces the risk of transmissibility during sex.
But antiretroviral therapy has not evolved to the point it can guarantee there's no risk of passing on the virus during unprotected sex. In 2012, the Supreme Court of Canada rendered a decision in a Manitoba case that tried to strike a balance between scientific progress in the treatment of HIV and criminal liability for HIV-positive persons who engage in undisclosed and unprotected sex.
Clato Mabior, a former Manitoba resident infected with HIV, had sex with nine women from 2004 to 2005. He told none of them of his condition. At trial he was convicted on six of nine charges of aggravated sexual assault.
On his appeal, the Manitoba Court of Appeal ruled there was no "significant risk of bodily harm" in four of the six charges for which Mabior was convicted at trial. Manitoba's highest court said the significant risk was negated by either low viral load or use of a condom.
The Supreme Court saw it differently. It reversed the Manitoba court, and ruled that sex without a condom, in the absence of disclosure of HIV sexual history, regardless of viral load, is a crime. Which is where our law stands today.
As medical science advances, it's likely the courts in future will re-visit the issue of realistic risk of infection versus criminal liability.
But for now, the HIV/AIDS experts' conference pronouncement is premature. In their rush to remove HIV transmission from the criminal justice system, they ignore the responsibility and culpability of people who know they are HIV-positive.
Sexual relations procured by a failure to disclose HIV-positive status or protect a partner is an assault. It's an intentional and wilful attack on the bodily integrity of an innocent sexual partner. And his or her consent to sex, if obtained through either omission or misrepresentation, is no consent at all.
Until medical science can warrant antiretroviral drugs eliminate all risk of transmission from an HIV-infected person to a sexual partner, sex obtained in the absence of full disclosure and without the use of a condom should remain a crime.