Law & Disclosure

As things are heating up between you and a potential sex partner, you’re faced with a dilemma — to tell or not to tell that you have HIV. Glenn Betteridge provides some information about what Canada’s criminal law says, and doesn’t say, about HIV-positive people’s obligation to disclose their status before having sex.

HARDLY A WEEK GOES BY without a news report about HIV. Unfortunately, these reports all-too-often concern criminal cases involving people with HIV. Typically, we are told about an HIV-positive person charged by police for allegedly not telling his or her sex partner about his or her HIV status before sex. According to the Canadian HIV/AIDS Legal Network, which tracks HIV legal and policy developments, police have charged approximately 75 people with HIV from 1998 to the end of 2008. The vast majority of those charged have been men who have had sex with women. Most of these criminal cases do not end well for the accused person. People living with HIV who have been found guilty have been sentenced to jail, some for many years.

Like me, you have probably been shaken to see the mug shot of a person with HIV staring out at you from a newspaper or TV screen. And, like me, you may think, “What about the challenges of living with HIV and the complexity of sexual relationships and HIV disclosure? Why don’t we hear about that in the media?” You may also be frightened by the possibility that you, or someone close to you, could be criminally charged some day.

What the law says

The criminalization of HIV and sex started in earnest in 1998. That year the Supreme Court of Canada, in a case called Cuerrier, decided that a man living with HIV who did not disclose his HIV status before having sex could be found guilty of assault (including sexual assault or aggravated sexual assault) under the Criminal Code. The Criminal Code is a federal law, so it applies all across Canada.

Cuerrier was a starting point that other Canadian legal cases have built on. Here is what the legal cases dealing with HIV, sex and disclosure say:

• A person has a legal duty to disclose his or her HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission. Right now, it seems pretty clear that the law sees vaginal and anal intercourse without a condom as a significant risk.
  The law is unclear about whether a person with HIV has a duty to disclose his or her status when engaging in sexual acts with a lower risk of HIV transmission (such as vaginal or anal sex with a condom, or oral sex without a condom or other barrier). It could be argued that the risk of transmission is low enough in the case of other activities that it should not be considered a “significant risk,” and therefore the person has no legal duty to disclose. But courts in Canada have not yet confirmed this.
• A person can be convicted of aggravated sexual assault and common nuisance for not disclosing his or her HIV status before having sex, even if the other person does not become infected. In other words, it is a criminal offence to expose someone through sex to a significant risk of getting HIV.
• A person may have a legal duty to disclose his or her HIV-positive status before having sex that poses a significant risk of transmission even if he or she knows that the sexual partner also has HIV. There are no decided court cases about this situation. Whether an HIV-positive person has a legal duty to disclose to another person with HIV will likely depend upon the seriousness of the bodily harm that could result if the other person was exposed to re-infection with a different strain of HIV.
• A person who knows there is a real possibility that he or she has HIV (but has not received an actual HIV-positive test result) may have a legal duty to tell sexual partners about this risk before having unprotected sex.

Making disclosure count

If you are going to disclose your HIV status to your sex partner, make it count. Avoid code words or hints like “poz” and “positive.” It is best to tell your partner: “I am HIV positive” or “I have HIV.” Make sure that your sex partner understands that HIV is a serious health condition that can lead to AIDS, that there is no cure, and that HIV can be passed on during sex.

Under the criminal law, you also have to have an honest and reasonable belief that the person agreed to have sex with you. So you must take reasonable steps to find out if he or she is too drunk or too high on drugs to agree to sex. If the person is too drunk or high to agree to sex, you could be charged with sexual assault. That is the law for everyone, not just for people with HIV.

The difficult situation of people who might lie

Even if you told a person before sex that you are HIV positive, after you have sex the person might lie and say that you didn’t. Judges and juries have decided many of the legal cases about HIV, sex and disclosure based on credibility — whom they believed or didn’t believe. In a court case, it is important to have evidence to show that you disclosed and that the other person knew your HIV status. Here are some strategies for you to consider.

• Witnesses: Tell the person you want to have sex with that you are HIV positive in front of a friend (or someone you trust). Your friend becomes a witness who can say that you disclosed your HIV infection.
• Online correspondence: If you disclose over Internet chat or by email, be clear about your HIV status. Try to get the other person to acknowledge in writing your HIV status and that he or she knows what HIV is and how it is transmitted. Save an electronic copy of what you wrote as well as the other person’s response, and print it out.
• Professional records: If you are thinking about getting into a relationship, you and the person can go to see a doctor, counsellor or support worker together. During the session disclose that you are HIV positive. Ask the counsellor to record notes of the session.
• Trust your instincts: If a person you are thinking about having sex with seems untrustworthy, ask yourself if the sex is worth the risk.

HIV-positive people often tell me that they feel a great responsibility or weight because they are living with HIV. They say that HIV is different than other infections and diseases because it can be transmitted during sex, there is no cure, it can lead to serious health problems and people living with HIV face high levels of stigma and discrimination. This explains, in part, why the law about HIV and sex is very strict, even harsh. When you know what the law says, you can make better decisions and avoid legal problems, which can hopefully lead to a safer and more satisfying sex life.

This article is not legal advice. You should not rely on it as legal advice. It contains information about the law. It is not a substitute for getting legal advice.

Glenn Betteridge is a legal and policy consultant living in Toronto.

Understanding how the law impacts your sex life can be difficult. HIV Disclosure: a legal guide for gay men in Canada offers information and practical tips about HIV disclosure and Canadian criminal law. The guide will be available in summer 2009 through the CATIE Ordering Centre at www.catie.ca.

Decisions about particular medical treatments should always be made in consultation with a qualified medical practitioner who is knowledgeable about HIV-related illness and the treatments in question. MORE

Production of this Web site has been made possible through a financial contribution from the Public Health Agency of Canada.

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