For people living with HIV, knowing when you have the legal duty to disclose (or share) your HIV status to a sexual partner can be unclear. For men who have sex with men, things can seem even more complicated.
In Canada, if someone doesn’t disclose their HIV status in a situation where the law says that they have to, they can be criminally charged. This can happen even if there was no intent to transmit the virus and whether or not transmission occurred. The most common charge in HIV non-disclosure cases is aggravated sexual assault. Here’s why this charge is used:
1. Sexual contact without consent is sexual assault.
Even if someone did consent to sexual activity with you, their consent can be invalidated if it is obtained through fraud. This would include lying about or failing to share something that would have changed their mind when determining whether or not they consent to having sex with you. Failing to disclosure your HIV status could fall within this category.
2. Sexual assault becomes aggravated sexual assault when it endangers someone’s life.
Canadian courts consider HIV to pose a risk of serious bodily harm and endangering someone’s life.
So, when exactly is someone required to disclose their HIV status? In 2012, within the context of a pair of rulings, the Supreme Court of Canada determined that people living with HIV must disclose their HIV status to a sexual partner when there is a “realistic possibility” of HIV transmission. Specifically, the courts determined that an individual living with HIV must disclose their status prior to vaginal sex if:
A condom is not used, regardless of the person’s viral load. If a condom were to break during sex, disclosure would then be required at that point.
A condom is used but the person’s viral load is high. A viral load was considered high by the court if it was more than 1500.
Based on this, a person living with HIV would not have to disclose their HIV status during vaginal intercourse if they use a condom and they have a low viral load (less than 1500).
So what does this mean for gay, bi, queer, and trans men? Unfortunately, the court’s 2012 rulings did not specifically address anal or frontal sex. Therefore, we cannot be certain. However, we can make the following inferences:
As anal sex can pose a higher risk of HIV transmission than vaginal sex, the duty to disclose one’s HIV status would be at least as high and possibly higher. The court did not state whether using a condom and having a low viral load was enough to remove a person’s duty to disclose their HIV status within the context of anal sex.
Frontal sex, from what we know, should pose a similar risk of HIV transmission to vaginal sex and therefore the duty to disclose one’s status should likely be the same, although the court decisions mentioned did not address frontal sex specifically.
What about oral sex, rimming, sharing sex toys, or other sexual activity for people living with HIV? The law is not clear about these things. However, in a criminal case where a person living with HIV did not disclose his HIV status to a sex partner, the Crown must prove beyond a reasonable doubt that the sexual activity exposed the other person to a realistic possibility of transmission of HIV.
Although the EMHC includes several members with an in depth knowledge of HIV, none of us are experts in HIV/AIDS law. So, if you want more information regarding HIV disclosure laws, speak with a criminal lawyer or check out the following resources: