Canadian Press (02.05.12) - Monday, February 06, 2012
Canada's Supreme Court on Wednesday will hear two cases
regarding whether it is a crime for people with HIV to not
tell their sexual partners about the infection when the risk
of transmission is low. A 1998 ruling on the issue has been
interpreted differently by judges across Canada.
In the first case, the Manitoba Court of Appeal overturned
four convictions tied to one man's failure to disclose his
infection to sex partners. The court noted that some sex
partners lacked exposure to "significant risk." The man was on
antiretroviral therapy and used condoms in some encounters,
and none of his partners tested HIV-positive, the court said.
Nevertheless, each uninfected sex partner was exposed to the
chance of infection, the province is arguing before the
Supreme Court. "It does not matter that the chance of this
occurring is small, the law aims to stop people from taking
that chance," the province said. "The choice whether to assume
this risk must ... lie with the person assuming the risk, not
the person imposing it," it added.
Prosecutors are making similar arguments for the second case,
which was overturned by Quebec's Court of Appeal on grounds
that the odds of HIV transmission at the time were low.
A sweeping responsibility for disclosure would unfairly strip
those infected of their right to privacy, say lawyers for the
two defendants with HIV. In addition, it could discourage
people from testing and seeking treatment, endangering those
with HIV as well as the public. Condom use and low viral loads
should factor into the law, which should reflect more clearly
what constitutes "significant risk," they argue. "We submit
that only the actual intentional transmission of the virus
should be criminalized, as in most of the Commonwealth
countries," they say.